.:..::-.:g  .y;:,:^:^K::^.v.,-                         ,-,■;■,-.,.., 

Wm^^^^^^^^^^^^ 

UNIVERSITY  Oh  CALIFORNIA   SAN  OIEGO 


3  1822  02590  9938 


-;''w5i<y 


i^'iilii^i'i'mn^ii?';ii9*'i";i9"mii\  rii^'i^.^/Eop 


3  1822  02590  9938 


UNIVaSfTY  OF  CAUFORNIA,  SAN  OUMf 
U  iOUA.  CAUK)«hUA 


^■ 


Costa  Rica -Panama   Arbitration 


OPINION 

Concerning  the  Question  of  Boundaries 


Between 


The  Republics  of  Costa  Riga  and  Panama 


Examined    with    Respect    to    the    Spanish    Law    and    Given    at    the 

Request  of  the  Government  of  Costa   Rica  by 

their  Excellencies, 

DON  SEGISMDNDO  MORET  Y  PRENDERGAST 

Ex-President  of  the   Cabinet   Council,    Ex-President  of  the   Congress  of  Deputies, 
Deputy   to  the  Cortes.    Ex-President  of  the   Central   University. 
Member    of    the    Permanent    Court    of    Arbitra- 
tion  of   the    Hague, 

and 

DON  VICENTE  SANTAMARIA  DE  PA  REDES 

Professor  of  Public  Law  in  the  Central  University,  Ex-Minister  of  Public  Instruc- 
tion,   Senator    of    the    Kingdom,    President    of    the    Council    of    Public 
Instruction,    Member   of   the   Royal    Academies   of   Moral 
and   Political   Sciences  and   of   History 
President  of  the  Technical  Commission   in  the  Arbitration   Between   the   Republics 
of    Honduras    and    Nicaragua,    Decided    by 
H.    M.    the    King    of    Spain. 

PRINTEHS: 

TBI  COMMONWEALTH  COMPANY, 

ROBSLYM,  VA.,  U.  S.  A. 

1913 


SEP  1  0  1938 


The  documents  to  which  parenthetical  reference  is 
made  herein  are  to  be  found  in  "Documents  Annexed 
to  the  Arg-ument  of  Costa  Rica  Before  the  Arbitrator, 
Hon.  Edward  Douglass  White,"  etc.,  in  four  volumes. 


IKTRODUCTION. 

I.  The  Arbitration  of  the  Boundary  Question  Pending 
Between  the  Republics  of  Costa  Rica  and  Panama. 

On  the  15th  of  March,  1825,  the  Republic  of  Coloni- 
bia  (whose  rights  are  now  claimed  by  that  of  Pana- 
ma) and  the  federated  Republic  of  Central  America 
(of  which  that  of  Costa  Rica  formed  a  part)  entered 
into  a  treaty  by  which,  in  article  5,  the  parties  mu- 
tually guaranteed  the  integrity  of  their  respective  ter- 
ritories "as  they  existed  prior  to  the  present  war  of 
independence,"  and,  in  article  7,  they  obligated  them- 
selves "to  respect  the  boundaries  of  each  other  as  they 
now  exist,"  reserving  to  themselves  the  duty  to  make 
amicably  and  by  means  of  a  special  agreement,  the 
demarcation  of  a  divisionary  line  as  soon  as  circum- 
stances might  permit  (Doc.  No.  257). 

On  the  dissolution  of  that  federation,  the  Republic 
of  Costa  Rica  and  that  of  Colombia  undertook  at  vari- 
ous times  to  establish  that  divisionary  line,  preparing 
agreements  which  were  never  ratified  and  passing 
through  serious  conflicts  in  consequence  of  their  dif- 
ferent conceptions  as  to  the  extent  of  their  territorial 
sovereignty. 

With  the  laudable  purpose  of  putting  an  end  amica- 
bly to  their  differences,  they  entered  into  an  agree- 
ment on  December  25,  1880,  submitting  to  arbitration 
"the  question  of  limits  existing  between  them  and  the 
designation  of  a  line  that  shall  separate  for  all  time 
and  with  entire  clearness  the  territory  of  the  one  from 
the  other."    By  virtue  of  this  agreement,  the  arbitra- 


tion  was  entrustod  to  J  lis  Majesty,  the  King  of  Spain, 
at  tliat  time  Don  Alfonso  Xll  (Doc.  No.  364). 

On  the  death  of  that  Monarch,  Costa  Rica  and  Co- 
lom[)ia,  on  January  120,  188(>,  entered  into  another 
c'onveution,  "additional"  to  that  of  ]8S()j^iii  Article  1 
of  which  the  Government  of  Spain  is  declared  to  be 
"competent  to  proceed  with  the  execution  of  the  arbi- 
tration and  to  deliver  a  definitive  sentence  of  an  irre- 
vociil>Ie  and  unappealable  character"  (Doc.  No.  369). 

In  Article  2  of  this  additional  convention  the  extent 
of  the  disputed  territory  was  determined,  and  the 
claims  of  the  parties  Iitij2^ant  were  set  forth  as  follows: 

"The  territorial  limit  which  the  Republic  of 
Costa  Rica  elaims,  on  the  Atlantic  side,  reaches 
as  far  as  the  Island  of  the  Escudo  de  Veragua 
and  the  River  ('liiri()iii  (C^alohehora)  inclusive, 
and,  on  the  Pacific  si<le,  as  far  as  the  River 
Chiriqui  Viejo,  inclusive,  to  the  east  of  Punta 
Burica. 

"The  territorial  limit  which  the  United  States 
of  Colombia  claims  reaches,  on  the  Atlantic 
side,  as  far  as  Cape  Gracias  a  Dios,  inclnsive, 
and,  on  the  Pacific  side,  as  far  as  the  mouth  of 
the  Golfito  River  in  the  Gulf  of  Dulce." 

\n  Article  3,  it  is  stated  that  the  arbitral  decision 
should  be  confined  to  the  territory  in  dispute  situated 
within  these  extreme  limits,  and  should  not  affect  in 
any  way  the  rights  of  a  third  party  who  may  not  have 
intervened  in  the  arbitration. 

New  dissensions  between  Costa  Rica  and  Colombia 
and  th(Mr  persistent  desire  for  a  friendly  settlement, 
led  to  a  third  convention,  signed  November  4th,  1896, 
by  wliich  the  arl)itration  was  offered  in  the  first  place  to 
the  President  of  the  Republic  of  France,  but  it  was  given 


to  be  understood  that  the  failure  to  designate  the  Gov 
ernment  of  Spain  as  arbitrator  was  due  solely  to 
Colombia's  reluctance  to  exact  from  that  Government 
so  much  continuous  service,  she  having  only  shortly 
before  then  subscribed  with  Ecuador  and  Peru  a 
boundary  treaty  in  which  His  Catholic  Majesty  was 
named  as  arbitrator,  and  this  after  his  laborious  trial 
of  the  question  of  the  Colombian-Venezuelan  i'rontier 
(Doc.  No.  403). 

In  this  third  convention  the  two  prior  ones  of  1880 
and  1886  were  ratified  and  held  to  be  in  force,  except 
Articles  2  to  6  of  the  former,  and  1  and  4  of  the  latter. 
So  that  tliere  remained  in  force:  Article  1  of  the  Con- 
vention of  1880,  stating  the  question  of  limits,  and 
Articles  2  and  3  relating  to  the  boundaries  claimed  by 
each  of  the  parties,  and  the  condition  that  the  arbi- 
trator be  confined  to  the  territory  in  dispute. 

The  arbitral  proceedings  having  been  submitted  to 
the  President  of  the  Republic  of  France,  His  Excel- 
lency Monsieur  Loubet,  who  was  then  in  charge  of 
that  very  high  office,  handed  down  his  decision  on 
September  11th,  1900  (Doc.  Nos.  413  and  414),  estab- 
lishing as  a  divisionary  line  that  which  he  traced  from 
Punta  Mona  on  the  Atlantic  Ocean  to  Punta  Burica 
on  the  Pacific  Ocean.  The  award  of  Monsieur  Loubet 
sets  forth  none  of  the  reasoning  on  which  it  is  based; 
only  the  bare  decision  is  given,  prefaced  by  a  list  of 
memoranda,  documents  and  maps  presented  by  each 
party,  and  an  enumeration  of  the  Royal  acts  cited 
by  both. 

The  Government  of  Costa  Rica  made  respectful  ob 
ser\'ations  to  that  of  France,  in  regard  to  the  difficul 
ties  of  carrying  out  the  Award;  and  the  Minister  of 
Foreign  AflFairs,  Monsieur  Delcasse,  in  his  note  of 


8 

November  23,  1900  (Doc.  Nos.  421  and  422),  addressed 
to  the  Minister  of  Costa  Rica  in  Paris,  answered 
sa}dng : 

"For  lack  of  precise  geographical  data,  the 
Arbitrlitor  has  not  been  able  to  fix  the  frontier 
except  by  means  of  general  indications ;  I  deem, 
therefore,  that  it  would  be  inconvenient  to  trace 
them  upon  a  map.  But  there  is  no  doubt,  as 
you  have  observed,  that  in  confomiity  with  the 
terms  of  Articles  2  and  3  of  the  Convention  of 
Paris  of  January  20,  1886,  this  frontier  line 
must  be  traced  within  the  limits  of  the  territory 
in  dispute,  as  they  are  found  to  be  from  the  text 
of  said  Articles.  It  is  according  to  these  prin- 
ciples that  the  Republics  of  Colombia  and  Costa 
Rica  ivill  have  to  proceed  in  the  material  de 
termination  of  their  frontiers ;  and  the  Arbitra- 
tor relies,  in  this  particular,  upon  the  spirit  of 
conciliation  and  good  understanding  which  has 
up  to  this  time  inspired  the  two  interested 
Governments. ' ' 

The  Government  of  Costa  Rica  understood  that  the 
decision  did  not  meet  all  the  conditions  stipulated  in 
the  arbitration  agreement,  since  it  did  not  establish 
the  divisionary  line  for  all  time  and  with  entire  clear- 
ness; it  even  went  outside  the  limits  of  the  disputed 
territory,  and  left  open  the  field  of  controversy.  In 
its  desire  to  settle  the  question  of  boundaries  definit'vely 
and  as  soon  as  possible,  that  government  sought  and 
in  December,  1907,  obtained  (Doc.  Nos.  440  and  442) 
the  friendly  mediation  of  the  United  States ;  there  was 
excellent  reason  for  this  choice  inasmuch  as  the  latter 
had  been  constituted  by  the  Treaty  of  November  3, 
1903,  guarantor  of  the  independence  of  the  new  Repub- 
lic of  Panama. 


Tlie  result  of  these  negotiations  was  the  Convention 
of  Marcli  17,  1910  (Doc.  No.  473^.  between  the  Repub- 
lics of  Costa  Rica  and  Panama,  submitting  the  defini 
tive  settlement  of  the  matter  to  tlic  Chief  Justice  of 
the  United  States,  in  the  following  form : 

*'The  Republic  of  Costa  Rica  and  the  Repub- 
lic of  Panama,  although  they  consider  that  the 
boundary  between  their  respective  territories 
designated  by  the  arbitral  sentence  of  His  Ex- 
cellency, the  President  of  the  Republic  of 
France,  of  the  11th  of  September,  1900,  is  clear 
and  indisputable  in  the  region  of  the  Pacific, 
from  Punta  Burica  to  a  point  beyond  Cerro 
Pando  in  the  Central  Cordillera  near  the  ninth 
degree  of  North  Latitude,  have  not  been  able 
to  reach  an  agreement  in  respect  to  the  inter 
pretation  to  be  given  to  the  Arbitral  Award  as 
to  the  rest  of  the  boundary  line;  and  for  the 
purpose  of  settling  their  said  disagreements 
agree  to  submit  to  the  decision  of  the  Honorable 
Chief  Justice  of  the  United  States,  who  will 
determine  in  the  capacity  of  Arbitrator :  What 
is  the  boundary  under  and  most  in  accordance 
with  the  correct  interpretation  and  true  inten 
tion  of  the  Award  of  the  President  of  the  Re- 
public of  France  made  the  11th  of  September, 
1900." 

The  convention  immediately  adds : 

"In  order  to  decide  this,  the  Arbitrator  will 
take  into  account  all  the  facts,  circumstances 
and  consid^erations  which  may  have  a  bearing 
upon  the  case,  as  well  as  the  limitation  of  the 
Loubet  Award,  expressed  in  the  letter  of  His 
Excellency,  M.  Delcasse,  Minister  of  Foreign 
Affairs  of  France,  to  His  Excellency,  Sehor 
Peralta,  Minister  of  Costa  Rica  in  Paris,  of 


10 

November  23,  1900,  that  this  boundary  line  must 
be  (irawn  within  the  confines  of  the  territory  in 
dispute  as  determined  by  the  Convention  of 
Paris  between  the  Republic  of  Costa  Rica  and 
the  Republic  of  Colombia  of  January  20,  1886.'* 

II.     Object  and  Plan  of  This  Opinion. 

This  matter  being  under  submission  before  the  Hon- 
orable Chief  Justice  of  the  United  States,  the  Govern- 
ment of  Costa  Rica  has  been  pleased  to  engage  the 
undersigned  counsel  to  examine  all  the  antecedents 
of  the  case,  the  allegations  of  the  Parties  litigant,  and 
the  laws  and  Royal  acts  invoked,  and  to  give  an  opin- 
ion in  regard  to  the  boundary  question  between  the 
Republics  of  Costa  Rica  and  Panama,  as  affected  by 
the  Spanish  colonial  law. 

In  order  to  fulfill  the  duty  with  which  it  has  hon- 
ored us,  we  have  carefully  examined  all  the  data  re- 
lating to  the  question,  and  after  mature  reflection,  have 
prepared  the  present  opinion. 

We  will  not  go  beyond  the  sphere  of  Spanish  colonial 
latv,  as  to  which  we  are  consulted,  and  we  wish  to  state 
that  we  adopt  this  denomination,  not  because  it  has 
been  used  in  Spain — who  called  her  territories  of  the 
Indies  kingdoms  and  provinces,  instead  oi  colonies — 
but  for  greater  clearness  and  in  contradistinction  to 
intcruutional  law,  into  which  we  shall  not  intrude. 

What  may  be  the  efficacy  of  the  decision  of  Monsieur 
Jjoubet  under  international  law,  and  what  the  value  of 
the  intercolonial  boundaries  in  fixing  the  international 
lines  between  two  adjoining  provinces  dependent  upon 
the  same  mother  country  and  now  converted  into  sov- 
ereign States,  are  questions  foreign  to  our  exami- 
nation. 


11 

But  we  do  contend  that  to  determine  the  question  of 
the  boundaries  between  Costa  Rica  and  Panama  ac- 
cording to  Spanish  colonial  law  is  equivalent  to  de- 
ciding it  under  international  law,  because  that  law 
has  been  fundamentally  the  basis  of  the  boundary  set- 
tlements of  the  Spanish-American  republics,  because 
the  entire  discussion  in  the  present  litigation  turns 
upon  that  law  solely,  and  because  the  "true  intent  of 
the  Award"  of  Monsieur  Loubet  was  to  sustain  that 
system  of  laws. 

Although,  as  we  have  indicated,  this  Award  con- 
tains no  reasoning  whatever,  it  clearly  appears  that 
the  Arbitrator  did  not  have  any  other  intention,  since 
it  refers  only  to  the  laws,  Royal  cedulas  and  Royal 
orders  of  the  colonial  epoch  which  it  cites  in  detail  in 
the  preamble,  save  the  Treaty  of  1825,  between  the 
Republics  of  Central  America  and  Colombia,  which 
recognized  as  boundaries  those  then  existing,  that  is 
to  say,  the  intercolonial  boundaries. 

And  since,  according  to  the  Convention  of  J  910,  tlie 
Chief  Justice  must  take  into  account  all  the  facts,  cir- 
cumstances and  considerations  of  the  case,  and  since 
the  case  involves  the  legality  of  the  demarcations  of 
Costa  Rica  and  Panama  according  to  Spanish  colonial 
law,  we  will  have  to  set  forth  all  those  facts,  circum- 
stances and  considerations  arising  during  the  period 
of  the  sovereignty  of  Spain  inasmuch  as  they  contrib- 
ute to  clear  up  the  matter. 

•  The  question  of  boundaries  being  placed,  therefore, 
in  the  field  of  Spanish  colonial  law,  we  divide  this 
opinion  into  three  parts,  comprising  the  three  proposi- 
tions following: 

1.  The  Province  of  Costa  Rica  and  that  of  Veragua 


u 

were  delinitively  established  and  marked  out  by  the 
Crown  in  the  Sixteenth  century  (1573). 

2.  The  Recopilacion  de  Indias  (Compikition  of  the 
Laws  of  the  Indies)  respected  and  contiiined  the  ex 
istence  and  demarcation  of  Costa  Rica. 

3.  Costa  Rica  continued  in  the  same  legal  status  of 
differentiation  from  Veragua,  from  the  publication  of 
the  RccupHacion  down  to  the  independence. 

Under  these  three  heads  we  shall  group  the  differ- 
ent controverted  questions,  developing  our  opinion 
thereon  as  we  proceed. 


FIRST  PART 

The  Provinces  of  Costa  Rica  and  Veragua  Were 
Definitively  Established  and  Bounded  by  the  Crown 
in  the  XVIth  Century  (1573). 

SUMMARY. 

I.  Necessity  for  Studying  the  Formation  of  the  Prov- 

inces of  Veragua  and  Costa  Rica. 

1.  The  "Veragua"  Equivoque  as  the  Premise  of  the 

Principal  Argument  of  Colombia. 

2.  The  History  of  the  Formation  of  the  Provinces  of 

Veragua  nnd  Costa  Rica  Clears  Up  the  Equi- 
voque aud  Clearly  Demonstrates  How  They 
Were  Recognized  and  Differentiated  in  the 
XVIth  Century. 

II.  The  Primitive  Veragua  (1502  to  1537). 

1.  The  Veragua  of  Christopher  Columbus  (1502). 

2.  The  Veragua  of  Nicuesa  (1508). 

3.  The  Veragua  Bordering  on  the  Castilla  del  Oro  of 

Pedrarias  Davila  (1513  to  1527). 

4.  The  Veragua  of  Felipe  Gutierrez  (1534). 

II.  Province  of  Veragua. 

1 .  Creation  of  the  Dukedom  of  Veragua;  Royal  Cedu- 
las  of  1537. 


14 

2.  Limits  of  this  Dukedom. 

3.  Suppression  of  the  Ducal  Seignory  (1556). 

4.  OrgaDization  of  the  Province  of  Veragua  with  a 

Governor  Captain-General. 

rv.  Province  of  Costa  Rica. 

1.  Koyal  Veragua;  Province  of  Costa  Rica;  Govern- 

ment of  Sanchez  de  Badajoz  (1539). 

2.  Province  of  Cartago;  Government  of  Diego  Gu- 

tierrez (1540). 

3.  Province  of  New  Cartago  or  Costa  Rica,  From  the 

Birth  of  the  Province  of  Veragua  (1560) : 

(a)  Differentiation  of  the  Two  Veraguas,  After 
the  Suppression  of  the  Ducal  Seignory; 

(b)  Ortiz  de  Elgueta  (1559) ; 

(c)  Juan  de  Cavallon  (1560); 

(d)  Denial  of  the  Request  of  the  Governor  of 
Tierra  Firme,  Figuerola  (1561); 

(e)  Vazquez  de  Coronado   (1562) ; 

(f)  Perafan  de  Ribera  (1566). 

4.  The  Province  of  Costa  Rica  Definitively  Organ- 

ized; Government  of  Artieda  (1573); 

(a)  Royal  Cedula  of  Philip  II  of  December  1, 
1573; 

(b)  Formation  of  the  Province  of  Teguzgalpa 
])y  the  Segregation  of  That  of  Costa  Rica, 
Prior  to  1573; 

(c)  Boundaries  With  the  Province  of  Veragua. 

V.  The  Question  of  Boundaries  Settled  by  the  Royal 
Cedula  of  1573  and  Not  by  That  of  1537. 

1.  Importance,  Confirmations  and  Subsistence  of  the 

Royal  Cedula  of  1573. 

2.  IneflScacy  and  Abrogation  of  the  Royal   Cedula 

of  1537. 


15 
I, 


NECESSITY  FOR  STUDYING  THE  FORMATION 

OF  THE  PROVINCES  OF  VERAGUA  AND 

COSTA  RICA. 

1.    The  "Veragua"  Equivoque  as  the  Premise  of  the 
Principal  Argument  of  Colombia. 

The  question  of  boundaries  pending  between  the 
Republics  of  Costa  Rica  and  of  Panama  (the  successor 
to  that  of  Colombia)  refers  to  the  territory  which  was 
called  "Veragua";  out  of  this  was  formed  the  Prov- 
ince of  Costa  Rica,  which  is  now  the  Republic  of  that 
name,  and  the  Province  of  Veragua,  which  belonged 
to  the  Republic  of  Colombia  and  now  belongs  to 
Panama. 

Placing  this  question  of  boundaries  within  the 
sphere  of  Spanish  colonial  law,  we  find  that  it  was  set- 
tled in  the  XVIth  century  by  the  formation  of  these 
two  provinces,  and  more  specifically  by  the  Royal 
cedula  of  December  1,  1573  (Doc.  No.  62),  which  es- 
tablished forever  the  differentiation  between  them. 
And  if  it  is  always  useful  to  know  how  any  political 
entities  which  litigate  their  geographical  boundaries 
were  formed,  it  becomes  indispensable  in  the  present 
case,  inasmuch  as  Colombia  has  enlarged  her  claims 
to  the  extent  of  denying  the  very  existence  of  Costa 
Rica  as  a  Spanish  province,  and  has  asked  as  her 
limits  those  with  vvhich  Costa  Rica  ends  on  the  side 
opposite  to  the  Colombian  borders,  in  order  clearly  to 
get  from  the  Arbitrator  the  greatest  extension  pos- 
sible, although  it  could  not  be  expected  that  the  arbi- 
tration would  result  in  the  suppression  of  the  adverse 
international  personality. 


16 

The  ancient  Veragua  passed  through  various  phases 
in  its  historico-legal  evolution,  until  its  name  became 
concreted  into  one  of  the  three  jirovinces  that  arose 
out  of  it;  Colombia  makes  use  of  the  "equivoque"  to 
which  the  variety  of  the  applications  of  the  name  gives 
rise,  and  founds  thereon  her  argument. 

All  of  Colombia's  counsel  employ,  as  their  principal 
argument,  the  one  which  may  be  formulated  in  the 
following  syllogism:  Law  9,  title  1,  book  V,  of  the 
Recopilacion  de  Indias  (Doc.  No.  135),  with  reference 
to  the  Royal  cedula  of  Carlos  V  of  March  2,  1537  (Doc. 
No.  13),  says  that  "the  whole  Province  of  Veragua 
belongs  to  the  Governemt  of  Tierra  Firme";  there- 
fore it  is  that  since  to  Colombia  belongs  that  which  was 
under  the  Government  of  Tierra  Firme,  it  follows  that 
all  of  the  Province  of  Veragua  belongs  to  her.  And  as 
the  Veragua  of  1537  comprised  all  of  the  territory  in- 
cluded between  Castilla  del  Oro  and  Cape  Gracias  a 
Dios,  and  as  within  that  territory  was  included  that 
which  Costa  Rica  now  holds,  the  latter  should  have  it, 
as  also  that  which  extends  from  the  Desaguadero,  or 
River  San  Juan  (the  boundary  of  Costa  Rica  with 
Nicaragua)  as  far  as  Cape  Gracias  a  Dios. 

Don  Francisco  Silvela,  who  signed  the  first  "Memo- 
randum of  Colombia,"  asserts  that  according  to  the 
Royal  cedula  of  March  2,  1537,  Veragua  comprised 
from  Castilla  del  Oi-o  as  far  as  Cape  Gracias  a  Dios, 
but  as  the  litigation  was  only  with  Costa  Rica — which 
went  no  farther  than  the  River  San  Juan — the  river 
should  be  the  northern  limit  on  the  Atlantic  (p.  61). 

Monsieur  Poincare  says  the  same  in  the  second  and 
third  "Memorandum  of  Colombia,"  declaring  in  the 
latter,  in  capital  letters,  "let  the  whole  Province  of 
Veragua  belong  to  the  Government  of  Tierra  Firme"; 


17 

this  being  the  decisive  phrase,  which  solemnly  ex- 
))i'esRes,  in  his  jnf1,£>-niont,  the  thought  of  the  Spanish 
Monarch  (p.  2).  In  the  "Summary  (resume)  of  the 
Conclusions  of  Coloni])ia,"  also  presented  to  the  Ar- 
bitrator by  Monsieur  Poincare,  he  condenses  the  argu- 
ment as  follows : 

"The  whole  of  the  Province  of  Veragua  de- 
pended from  the  Audiencia  of  Panama  and  this 
Audiencia  was  swallowed  up  in  the  Viceroyalty 
of  Santa  Fe.  Colombia  is  unquestionably  the 
successor  to  the  right  of  the  Government  of  Tier- 
ra  Firme,  of  the  Audiencia  of  Panama  and  the 
Viceroyalty  of  Santa  Fe.  All  of  the  Province 
of  Veragua  ought,  therefore,  to  belong  to  Colom- 
bia. Since  its  origin  the  Province  of  Veragua 
has  extended  as  far  as  Cape  Gracias  a  Dios.  (See 
the  Royal  cedula  of  March  2,  1537.)  It  has 
never  been  divided." 

2.  The  History  of  the  Formation  of  the  Province  of 
Veragua  and  Costa  Rica  Clears  Up  the  Equivoque  and 
Clearly  Demonstrates  How  They  Were  Recognized  and 
Differentiated  in  the  XVIth  Century. 

History  clears  up  the  equivoque  upon  which  Colom- 
bia bases  her  argument,  for  it  shows  the  different  sig- 
nifications which  the  denomination  of  "Veragua"  had 
until  it  came  to  be  applied  solely  to  one  determined 
province. 

This  investigation  of  the  formation  of  the  Province 
of  Veragua  and  Costa  Rica  has,  besides  its  historical 
interest,  the  immense  importance  of  clearly  demon- 
strating how  the  question,  which  is  now  being  tried  be- 
tween Costa  Rica  and  Panama,  was  settled  in  the 
XVIth  century  by  the  Spanish  colonial  law — not  by 
virtue  of  the  Royal  cedula  of  1537.  but  of  the  Koyal 


ts 

oedulas  of  December  1,  U^l'A  (Doc.  Xo.  tJ2),  aud  Feb- 
ruary IS,  1574  (Doe.  Xo.  03). 

Wo  think  that  Cohjinbia's  counsel,  by  taking  as  a 
point  of  departure  the  RecopUncion  de  ludias,  have 
obscured  the  controversy;  they  have  mixed  legal  con- 
siderations deduced  from  its  texts  with  Tiistorical  as- 
sertions difficult  of  comprehension  in  connection  with 
those  texts,  without  previously  taking  up  the  history 
of  the  formation  of  those  provinces,  as  was  done  by 
counsel  for  Costa  Rica  in  his  first  Memorandum.  It 
seems  to  us  better  to  explain  and  discuss  first  the  acts 
iind  legal  dispositions  that  preceded  the  Recopilacidn, 
and  then,  afterwards,  to  examine  the  Recopilacidn, 
and,  taking  its  laws  altogether,  apply  them  to  the  facts 
and  prior  dispositions  which  are  already  known,  with- 
out having  to  interrupt  the  doctrinal  demonstration 
with  historical  digressions  appropriate  to  the  preced- 
ing epoch. 

For  greater  clearness,  also,  we  divide  the  historico- 
legal  examination  of  the  epoch  prior  to  the  Recopila- 
cion  into  three  sections,  which  cover  respectively:  (1) 
that  which  we  call  primitive  Veragua,  that  is,  from 
the  discovery  by  Columbus,  in  1502,  down  to  its  divi- 
sion into  Ducal  Veragua  and  Royal  Veragua,  in  1537; 
(2)  the  Province  of  Veragua,  and  (3)  the  Province  of 
Costa  Rica.  AVithin  each  section  we  follow  the  chro- 
nological method,  which,  thus  combined  with  the  geo- 
graphical division,  obviates  the  confusion  that  results 
when,  by  observing  the  former  exclusively  and  keep- 
ing the  order  of  the  dates,  different  facts  relating  to 
distinct  provinces,  are  mingled.  From  all  this  exami- 
nation we  shall  deduce,  at  last,  that  the  question  of 
boundaries  was  settled  by  the  Royal  cedula  of  1573, 
and  not  bv  that  of  1537. 


*.-'•• 


TEPIF!irOf:/£3      Cr     CcNTiRflL       /JMEPIIC/i 

c/it:0\/£RSO    Br    COI.UM3U3 

irt   mi    rovftTM    varnic     t/sax) 


19 


THE  PRMITIVE  VERAGUA  (1502  TO  1537). 
1.  The  Veragua  of  Christopher  Columbus  (1502). 

For  many  years  the  territories  of  Central  America 
lying-  along  the  coast  of  the  Atlantic,  from  Cape  Hon- 
duras as  far  as  the  port  of  Retrete  (now  the  port  of 
Escribanos)  near  Cape  San  Bias,  and  which  Christo- 
pher Columbus  discovered  in  his  fourth  and  last  voy- 
age of  1502,  were  known  by  the  name  of  "Veragiia." 

Strictly  speaking  this  name  belonged  only  to  a  ham- 
let and  a  small  surrounding  territory.  Columbus  re- 
lates, in  his  letter  from  Jamaica,  of  July  7,  1503,  to 
the  Catholic  Sovereigns  (Doc.  No.  1),  in  which  he  gives 
an  account  of  this  voyage,  that  two  Indians  took  him 
to  Carambarii  (Zorobaro),  where  the  people  went 
naked,  with  but  a  mirror  of  gold  at  the  neck,  telling 
him  of  many  places  on  the  coast  in  which  gold  was  to 
bo  found;  "the  farthest,"  he  said,  ''was  Veragua, 
distant  from  there  about  25  leagues."  And  in  de- 
scribing in  detail  the  same  voyage,  Diego  de  Porras 
explains  how  Columbus,  entering  by  the  river  he  called 
Belen,  ''in  the  territory  of  Veragua,"  proved  the  ex- 
istence of  the  mines.  So  Columbus  understood  that 
Veragua  was  situated  25  leagues  to  the  east  of  Zoro- 
baro and  extended  to  the  River  Belen. 

The  great  fame  acquired  by  this  territory  of  Ve- 
ragua— in  which  Columbus  stated  that  in  the  first  two 
days  he  had  seen  greater  signs  of  gold  than  in  Es- 
pafiola  (the  Island  of  Hispaniola,  or  Hayti)  during 
four  years — caused  its  discovery  to  be  considered  as 
the  most  important  of  that  fourth   voyage,  and  the 


20 

name  "Veragua"  was  applied  to  all  that  was  discov- 
ered there,  from  Cape  Honduras  as  far  as  the  Cape  of 
San  Bias. 

2.  The  Veragua  of  Nicuesa   (1508). 

When  Columbus  returned  to  Spain  he  claimed  from 
the  Catholic  Sovereigns  the  fulfillment  of  the  promises 
made  to  him.  especially  as  to  the  seignory  of  the  terri- 
tory of  Veragua,  which  was  the  one  that  he  held  in  the 
greatest  esteem.  But  he  did  not  have  the  support  of 
Queen  Isabella,  who  had  died,  and  the  Catholic  King 
did  not  admit  his  claims,  considering  them  excessive 
and  dangerous  to  the  Royal  soverei.oiaty.  The  Admiral 
having  died  without  succeeding  in  his  desires,  Don 
Diego  Columbus,  his  son  and  heir,  instituted  a  suit, 
in  1508,  against  the  Crown,  which  was  in  great  part 
settled  by  the  creation  of  the  Dukedom  of  Veragua, 
in  1536. 

By  the  Royal  cedula  of  Dona  Juana.  of  Juno  9,  1508 
(Doc.  No.  2),  the  Government  of  Veragua  was  granted 
to  Diego  de  Nicuesa;  therein  ho  was  givon  besides  the 
military  command,  ''full  power  and  jurisdiction,  civil 
and  criminal,"  although  restricte<l  by  the  right  of 
a]ipeal  to  the  Governor  of  the  Island  of  Espanola.  In 
this  Royal  cedula  the  extremity  of  "\'eragua  was  clearly 
fixed  on  the  side  of  Tierra  Firme,  in  the  Gulf  of  Uraba. 
and  it  was  provided  further  that  the  part  of  Uraba  is 
that  granted  to  Alonso  de  Ojeda ;  but  there  is  no  indi- 
cation where  the  Government  of  ^>ragna  which  was 
granted  to  Nicuesa,  terminated  on  the  wost  and  north 

Fray  Bartolomo  de  las  Casas  aTid  other  historians 
of  the  Indies  (like  Tlerrera  and  Nn\arrete)  say  that 
the  Veragua  of  Xicnesa   extendod   from  the  Gulf  of 


»r  «»«..».  o.o 


THE  VERRGU»   or  NiCI/eSfl 
eo^Oiit    ro   thi   mtrat   Ctovi.»    a»    /f/v^  f,    -sot 


21 

Uraba  as  far  as  Capo  Gracias  a  Dios.  Fernandez  de 
Oviedo  asserts  tliat  it  was  from  the  same  Gulf  of  Uraba 
**as  far  as  the  end  of  the  territory  called  Veragua.'* 
Senor  Peralta  observes  very  properly,  that  the  only 
data  which  the  Catholic  King  had  before  him  on  which 
to  base  the  grant  of  the  Government  of  Veragua,  were 
the  courses  and  indications  of  Columbus,  and  if  these 
be  ignored,  there  is  just  as  much  reason  to  conjecture 
that  it  extended  to  Cape  Gracias  a  Dios  as  that  it 
extended  to  Cape  Honduras,  or  any  other  point  in  the 
voj'^age  of  the  Great  Discoverer.  This  strengthens 
the  extension  that  was  given  to  the  name  of  Veragua. 

Nicuesa  did  not  succeed  in  founding  anything  in  the 
territory  which  was  allotted  to  him ;  he  stayed  only  in 
the  Veragua  of  the  Belen  river  and  in  the  Island  of 
the  Escudo  of  Veragua  (or  Nicuesa),  and  there  en- 
dured many  misfortunes,  disappearing,  in  1511,  in  a 
shipwreck. 

Vasco  Nunez  de  Balboa,  who  had  founded  the  colony 
of  Santa  Maria  del  Darien,  within  the  jurisdiction  of 
Nicuesa  on  the  western  coast  of  the  Gulf  of  Uraba,  in 
a  letter  of  January  20,  1513  (Doc.  No.  3),  giving  an 
account  to  the  King  of  the  progress  of  that  colony, 
asked  that  he  might  be  allowed  to  bring  back  some 
Indians  *'of  the  part  of  Veragua  from  a  gulf  called 
San  Bias,  which  lies  at  a  distance  of  50  leagues  from 
this  town  down  the  coast."  So  that  according  to 
Nunez  de  Balboa,  Veragua  did  not  terminate  on  its 
eastern  side  at  the  Belen  river,  but  included  also  the 
territories  of  the  Gulf  of  San  Bias. 

Vasco  Niinez  de  Balboa  discovered  the  South  Sea 
(Pacific)  on  September  25,  1513. 


22 

3.     The  Veragua  Bordering  on  the  CastiUa  del  Oro  of 
Pedrarias  Davila   (1513  to  1527). 

By  the  Royal  cedilla  of  July  27,  1513  (Doc.  No.  4), 
Pedrarias  Davila  was  appointed  Captain-General  and 
Governor  of  the  Province  of  CastiUa  del  Oro  (the  first 
time  that  this  denomination  was  applied  to  Tierra 
Finne)  ''so  long  as  it  does  not  include  nor  have  em- 
braced within  it  the  Province  of  Veragiia,  the  admin- 
istration of  which  belongs  to  the  Admiral  Don  Diego 
Columbus,  because  the  Admiral,  his  father,  discovered 
it  in  person."  The  Province  of  CastiUa  del  Oro  was, 
therefore,  differentiated  from  the  ''Province  of  Ve 
ragua,"  which  was  thus  denominated  before  the  crea- 
tion of  the  dukedom  of  the  same  name ;  but  the  bounda- 
ries between  the  two  were  not  fixed. 

Gonzalo  Fernandez  de  Oviedo,  the  official  historian 
of  the  Indies,  who  intervened  in  the  conquest  of  Tierra 
Firme  and  Nicaragua,  says  that  "CastiUa  del  Oro  on 
the  Nortii  Coast  roaches  as  far  as  Veragua,  with  which 
the  Punta  de  Chame  corresponds  n^ore  or  less  on  the 
South  Coast,  fifteen  leagues  to  the  West  from 
Panama." 

This  limit  agrees  with  that  of  the  jurisdiction  of  the 
city  of  Panama,  fixed  by  the  Royal  cedula  of  1521 
(Doc.  No.  5),  wherein  it  is  stated  that  it  reaches  "as 
far  as  the  Province  of  Chiru,"  which  is  situated  a 
short  distance  from  the  Punta  de  Chame. 

According  to  this,  the  Province  of  Veragua,  border- 
ing on  CastiUa  del  Oro,  did  not  terminate  on  the  east 
at  the  Bel  on  river,  but  extended  as  far  as  the  said 
Punta  de  Chame. 

Pedrarias  Davila  governed  CastiUa  del  Oro  until 
1527,  when  he  left  to  become  Governor  of  Nicaragua. 


23 
4.    The  Veragua  of  Felipe  Gutierrez  (1534). 

Wliilst  the  suit  instituted  by  Don  Diego  Cohimbus 
was  still  pending,  but  with  the  declaration  made  in  his 
favor  by  the  Crown  respecting  Veragua  (excluding  it 
from  the  Government  of  Castilla  del  Oro),  the  widow, 
Dona  Maria  de  Toledo,  as  guardian  of  his  children  and 
Vicereine  of  the  Indies,  determined  to  grant  the  Gov- 
ernment of  Veragua  to  Felipe  Gutierrez,  and  applied 
to  the  Council  of  the  Indies  for  the  issuance  to  him  of 
the  requisite  Royal  provisiones.  But  in  accord  with 
the  Council,  the  King  Don  Carlos  preferred  to  ^rant 
the  concession  directly  to  Felipe  Guterrez ;  this  he  did 
by  the  capitulacion  approved  by  the  Royal  cedula  of 
December  24,  1534  (Doc.  No.  8),  and  at  the  same  time, 
by  another  Royal  cedula,  of  the  same  date  (Doc.  No. 
6),  he  declared  that  this  ''is  understood  to  be  without 
prejudice  to  any  right  that  the  said  Admiral  Don  Luis 
Columbus  claims  to  have  to  the  said  government  by 
virtue  of  his  privileges,"  In  the  Royal  cedula  of 
February  6,  1535  (Doc.  No.  9),  the  title  of  Governor 
of  Veragua  was  conferred  upon  Felipe  Gutierrez  with 
all  that  pertained  thereto. 

Both  in  the  Royal  cedula  of  capitulacion,  as  well  as 
in  the  title  the  text  reads: 


"The  Province  of  Veragua,  which  is  on  the 
coast  of  Tierra  Firme  of  our  Indies  of  the  Ocean 
Sea,  whence  terminate  the  boundaries  of  the 
Government  of  Castilla  del  Oro,  called  Tierra 
Firme,  and  which  were  designated  to  Pedrarias 
Davila  and  Pedro  de  los  Rios,  who  were  our  Gov- 
ernors of  the  said  province  under  the  Provis- 
iones which  were  given  to  them,  as  far  as  the 
Cape  Gracias  a  Dios." 


24 

Felipe  Gutierrez  as  Governor  of  Veragua,  having 
presented  a  complaint  against  the  Governor  of  Tierra 
Firnie,  because  the  latter  had  invaded  his  territory, 
the  Royal  cedula  of  July  14,  1536  (Doc.  No.  10),  was 
issued,  directing  the  latter  not  to  enter  within  the  lina- 
its  of  the  Province  of  Urraca,  as  it  fell  within  that  of 
Veragua.  The  territories  of  Urraca  were  contiguous 
to  Xata  and  occupied  the  heights  which  divided  the 
waters  of  the  north  and  the  south;  so  that  by  this 
Royal  cedula  the  eastern  boundaries  of  the  Province 
of  Veragua  were  concretely  defined. 

Almost  at  the  same  time  Felipe  Gutierrez  abandoned 
his  charge  and  set  out  for  Peru,  having  failed  in  his 
undertaking  and  being  unable  to  support  so  many 
misfortunes. 

III. 
PROVINCE  OF  VERAGUA. 

1.     Creation  of  the  Dukedom  of  Veragua;  Royal  Ce- 
dulas  of  1537. 

The  long  suit  based  upon  the  chiinis  of  Christopher 
Columbus,  which  his  son  Don  Diego  began  in  1508 
and  which  was  continued  by  the  widow  of  the  latter, 
Dona  Maria  de  Toledo — for  herself  and  in  the  name  of 
her  first  bom,  Don  Luis,  and  other  children — was  de- 
cided by  the  arbitral  decision  of  July  7,  1536';  this 
decision  was  delivered  by  the  Cardinal  Fray  Garcia  de 
Loaysa,  Bishop  of  Sigiienza,  Confessor  of  the  Em- 
peror and  President  of  the  Council  of  the  Indies,  who 
was  appointed  arbitrator  by  mutual  agreement  be- 
tween the  Vicereine  and  the  Crown. 

'  Document  published  by  Fernandez  Duro,  Colon  y  Pincon. 


/ineitoiHt    TO  rni  RorifL  ctoums     »r  Oicenatt    S¥,/fS^ 

ftafH/Aur  6,  /SJS  mko  Jvl  r  /<',  /SS6 

jr»/ro«/ireo    ar    rut  /forjn.    ceavia 

or  MitncM  3,  /SS/ 


25 

Carlos  V,  in  his  Royal  cedula  of  January  19,  1537 
(Doc.  No.  ]2),  states  how  both  parties  entrusted  the 
settlement  to  the  Cardinal  in  order  that  he  might 
''determine  and  arbitrate  therein  as  lie  shall  deem 
best,  taking  from  one  party  and  giving  to  the  other, 
accordingly  as  may  appear  to  him  proper;"  he  con- 
firms the  Cardinal's  decision  and,  in  pursuance  thereof 
creates  the  Dukedom  of  Veragua  in  favor  of  Don  Luis 
Columbus  and  his  successors,  making  a  grant  to  him 
and  to  his  house  and  estate  of  ' '  twenty-five  leagues  of 
land  in  a  square  in  the  Province  of  Veragua  which  is 
in  Tierra  Firme,  with  its  civil  and  criminal  jurisdic- 
tion, high  and  low,  simple,  mixed  imperial,  leaving 
the  supreme  to  His  Majesty." 

The  creation  of  the  Dukedom  of  Veragua  which 
segregated  a  square  of  twenty-five  leagues  on  each 
side  of  the  territory  known  under  the  name  of  Veragua 
and  the  government  of  which  had  been  granted  to 
Felipe  Gutierrez,  compelled  provision  to  be  made  in 
regard  to  the  legal  and  the  governmental  situation  in 
which  that  territory  was  left,  especially  since,  at  the 
end  of  1536,  the  desertion  of  that  governor  had  become 
known  in  Spain.  This  led  to  the  Royal  cedula  of 
March  2,  1537  (Doc.  No.  13),  in  which  the  Emperor 
revoked  the  capitulacion  and  government  of  Felipe 
Gutierrez,  reproduced  the  disposition  concerning  the 
creation  of  the  dukedom  and  directed  that  the  territo- 
ries left  in  the  said  Province  of  Veragua,  after  taking 
out  the  twenty-five  leagues  given  to  Don  Luis  Colum- 
bus, be  understood  to  belong  to  the  Government  of  the 
Province  of  Tierra  Firme,  called  Castilla  del  Oro, 
''during  our  will  and  pleasure." 

By  virtue  of  this  Royal  cedula,  upon  which  counsel 
for  Colombia  mainly  rely  in  defense  of  her  rights,  the 


26 

territory  of  the  ancient  Veragna  granted  to  Felipe 
Gutierrez  was  divided  into  two  parts,  which,  in  order 
to  distinguish  them,  are  designated  in  the  present  con 
troversy  Diical  Veragna  and  Royal  Veragna,  refer 
ring  respectively  to  that  which  constituted  the  Duke- 
dom of  Veragua  and  to  that  which  was  reserved  by  the 
Crowm  for  its  free  disposal. 


2.    Limits  of  This  Dukedom. 

In  this  Royal  cedula  of  March  2,  1537,  as  well  as  in 
the  earlier  one  of  January  19th,  the  boundaries  of  the 
Dukedom  of  Veragua  were  fixed  in  the  following 
manner : 


*'  *  *  *  a  square  of  land  twenty-five 
leagues,  in  the  said  Province  of  Veragua  *  *  * 
and  they  begin  from  the  River  Belcn,  inclusive, 
counting  by  a  parallel,  as  far  as  the  western 
part  of  the  Bay  of  Zoroharo;  and  all  the  leagues 
that  may  be  lacking  for  the  said  twenty-fiv<rf 
leagues,  shall  be  counted  forward  from  the  said 
bay  by  the  said  parallel;  and  where  these 
twenty-five  leagues  tenninate,  another  twenty- 
five  shall  begin  by  a  North-South  meridian ;  and 
as  many  others  begin  from  the  said  River  Belen 
by  the  said  meridian  of  the  said  river,  North- 
South  ;  and  where  these  said  twenty-five  leagues 
shall  end,  there  shall  begin  another  twenty-five 
leagues,  which  shall  continue,  counting  by  a 
parallel,  until  they  end  where  the  twenty-five 
leagues  terminate  that  are  counted  proceeding 
forward  from  the  Bay  of  Zoroharo;  which  ter- 
ritory we  have  commanded  to  be  called  the  Bay 
of  Zoroharo,  and  with  it  we  direct  to  be  given 
him  the  title  of  Duke     *     *     ♦  " 


27 

As  may  be  seen,  the  <lemarcation  is  mathematical; 
the  grant  forms  a  perfect  quadrangle,  which  has  one 
side  definitely  (ietermined  by  the  meridian  correspond- 
ing to  the  Belen  river,  included  therein.  It  should  be 
note<i  that  Zorobaro  and  the  Belen  river  were  for 
(^hristopher  Columbus  the  indicatory  points  of  the 
Veragua  discovered  and  coveted  by  him  imder  this 
name ;  and  it  appears  that  between  the  meridian  of  the 
Belen  river  and  the  Province  of  Castilla  del  Oro,  which 
the  prior  demarcations  refer  to  as  bordering  on  the 
Province  of  Veragua,  there  were  lands  which  were  not 
included  in  the  Dukedom  of  Veragua. 

These  facts  must  be  taken  into  consideration  when 
the  time  comes  to  interpret  the  Recopilacion  de  Indias 
in  its  relation  to  the  Royal  cedula  of  March  2,  1537; 
and  without  concerning  ourselves  now  with  the  terri- 
tory of  the  Royal  Veragua  left  on  either  side  of  the 
twenty-five  leagues  of  the  dukedom,  let  us  see  how  the 
latter  was  converted  into  the  Province  of  Veragua 
properly  so-called. 

3.    Suppression  of  the  Ducal  Seignory  (1556). 

Don  Luis  Columbus  was  not  fortunate  in  the  con- 
quest and  government  of  the  dukedom  which  was  ex- 
ercised and  carried  on  by  governors  and  captains  ap- 
pointed by  him,  and  after  the  disaster  in  which  his 
brother  Francisco  perished  and  the  failure  of  Rebol- 
ledo,  he  made  a  cession  to  the  Crown  of  the  territories 
and  seignory  of  the  Dukedom  of  Veragua,  in  consid- 
eration of  an  annual  pension  of  seven  thousand  ducats, 
but  the  title  he  retained,  as  he  stipulated  with  the 
Council  of  the  Indies  in  writing  on  July  4,  1556,  which 
stipulation  the  King  approved  and  directed  to  be  car- 


28 

ried  out  by  the  Royal  cedula  of  December  2  of  the  same 
year  (Doc.  No.  31). 

The  territory  of  the  suppressed  dukedom  was  left 
added  to  the  Government  of  the  Province  of  Tierra 
Firme,  called  Castilla  del  Oro,  it  not  being  true  that 
it  was  placed  under  the  jurisdiction  of  the  city  of  Natd, 
as  counsel  for  Colombia  assert.  The  fact  is  that,  by 
the  Royal  cedula  of  January  21,  1557  (Doc.  No.  32), 
the  Governor  of  Tierra  Pirme  was  authorized  to  per- 
mit the  inhabitants  of  Nata  to  settle  the  territory  of 
the  dukedom  as  they  had  asked  permission  to  do. 

The  inhabitants  of  Nata  organized  an  expedition 
under  the  command  of  Francisco  Vazquez,  who  was 
commissioned  by  the  Governor  of  Tierra  Firme,  and 
who,  in  May,  1558,  entered  the  territory  of  Urraca, 
founded  some  settlements  and  discovered  some  mines. 

The  Governor  of  Tierra  Firme,  Monjaraz,  learning 
of  this,  wanted  to  make  the  conquest  himself,  and  set 
out  for  Nata;  but  Vazquez  hastened  to  make  a  com- 
plaint to  the  Audiencia  of  Peru  (Doc.  No.  33)  and 
with  his  men  resisted  the  entry  of  Monjaraz,  defeating 
him  on  the  banks  of  the  Gatu  river,  the  boundary  of 
the  Dukedom  of  Veragua  on  the  side  of  Nata. 

4.     Organization  of  the  Province  of  Veragua  With  a 
Governor  Captain-General  (1560). 

In  view  of  the  complaint  instituted  by  Francisco 
Vazquez  the  Audiencia  of  Peru,  by  Royal  provision 
of  May  20,  1559  (Doc.  33),  appointed  Bernardino  de 
Roman  to  take  uj)  the  matter  and  arrange  its  settle- 
ment.   Bernardino  de  Roman  was  informed  of  all  that 


29 

had  happened  and  then  made  a  long  report  to  the  King, 
giving  an  opinion  very  favorable  to  Viizquez.' 

Philip  II  put  an  end  to  tlie  question  by  the  Royal 
cedula  of  August  20,  1560  (Doc.  No.  40),  instituting 
the  Province  of  Veragua  with  a  Governor  Captain- 
General  and  appointing  for  this  post  Francisco  Vaz- 
quez, to  whom  he  granted  all  the  attributes  necessary 
for  the  good  government  and  administration  of  jus- 
tice in  that  province. 

The  boundaries  of  the  new  Government  were  not 
fixed;  but  there  can  be  no  doubt  that  it  had  for  its 
territory  that  of  the  suppressed  dukedom,  according 
to  the  antecedents  of  this  Royal  cedula  and  to  the  lan- 
guage used  therein  respecting  the  origin  of  the  ques- 
tion decided.  Francisco  Vazquez,  in  his  petition  to 
the  Audiencia  of  Peru,  appears,  represented  by  at- 
torney, as  a  resident  of  the  city  of  Nata  by  virtue  of 
the  rights  established  by  the  Royal  cedula  of  January, 
1557,  which,  he  says,  ''commands  the  Governor  of  the 
Province  of  Tierra  Firme  to  appoint  a  person  who 
should  settle  and  conquer  the  Province  of  Veragua, 
that  was  the  Duhedom  of  the  Admiral  Don  Luis  Co- 
lumbus, but  which  His  Majesty  had  placed  again  under 
the  Royal  Crown  *  *  *."  The  Royal  cedula  of 
1560,  appointing  him  Governor,  began  by  stating  that 
he  made  an  agreement  and  capitulacion  with  tlie  Gov- 
ernor or  Tierra  Firme  in  order  to  settle  the  Province 
of  Veragua,  as  the  latter  had  been  authorized. 

Francisco  Vazquez,  then,  was  the  first  of  the  gov- 
ernors who  ruled  the  Province  of  Veragua,  which  con- 
tinued under  that  kind  of  authority  during  the  whole 
of  the  Colonial  epoch. 

'  Leon    Fernandez,    Coleccion    de   Documentos   para    la    Historia    dc 
Costa  Rica,  Vol.  V,  p.  153. 


IV. 

PROVINCE  OF  COSTA  RICA. 

1.    Royal  VeragTia;  Province  of  Costa  Rica;  Govern- 
ment of  Sanchez  de  Badajoz  (1539). 

As  we  have  said,  by  Royal  codula  of  March  2,  1537, 
the  Veragua  the  government  of  which  was  granted  to 
Felipe  Gutierrez,  was  left  split  up  into  two  parts :  the 
dukedom,  that  is  to  say,  the  square  of  twenty-five 
leagues  given  to  Don  Luis  Columbus ;  and  the  rest  of 
that  territory,  herein  called  for  greater  clearness 
Royal  Veragua,  in  contradistinction  to  Ducal  Veragua. 

The  said  Royal  cedula,  from  which  Colombia  dejives 
all  her  rights,  simply  says  in  respect  of  Royal  Ver- 
agua, that  it  was  left  in  the  Government  of  Tierra 
Firme  (Castilla  del  Oro)  during  the  Monarch's  pleas- 
ure ;  and  the  Monarch  repeatedly  disposed  of  it,  to  that 
extent,  at  least,  therefore,  repealing  the  Royal  cedula 
referred  to. 

In  the  first  place  the  jurisdiction  over  Royal  Ver- 
agua passed  from  the  Government  of  Tierra  Firme 
to  the  Audiencia  of  Panama,  which  replaced  the  for- 
mer in  1538. 

Because  of  the  fact  that  Royal  Veragua  depended 
upon  the  Government  of  this  Audiencia,  its  Judge,  Dr. 
Robles,  thought  that  he  was  authorized  to  make  a  capit- 
ulacion  giving  it  to  his  son-in-law,  Hernan  Sanchez  de 
Badajoz,  who  already,  through  the  Vicereine,  had  the 
Government  of  the  dukedom  under  his  charge,  and 
because  "the  one  did  not  go  without  the  other."  It 
was  so  stated  by  him  in  his  letter  to  the  Council  of 
the  Indies  of  the  19th  of  July,  1539  (Doc.  No.  15). 


31 

But  Rodrigo  de  Contreras,  Governor  of  Nicaragua, 
had  commissioned  two  captains  to  undertake  the  ex- 
ploration of  the  Desaguadero,  or  River  San  Juan,  and, 
as  the  hitter  disembogued  on  the  Veragua  coast  which 
had  been  granted  to  Sanchez  de  Badajoz,  the  Au- 
diencia  of  Panama  informed  that  governor  of  the 
undertaking  by  Royal  pruvisiones  of  December  17, 
1539  (Doc.  No.  16)  ;*in  this  he  was  told  that  the  grant 
to  Sanchez  de  Badajoz  comprised  the  right  of  conquest 
and  Captaincy-General  of  the  Province  of  Costa  Rica, 
''which  extends  from  the  borders  of  the  Dukedom  of 
Veragua  and  Zoroharo  as  far  as  Guaymura  (Cape 
Camaron)  and  from  Sea  to  Sea."  This  is  the  first 
time  that  the  name  of  Costa  Rica  appears  officially, 
and  as  equivalent  to  the  wider  acceptation  of  Veragua, 
that  is  to  say,  to  the  coast  discovered  by  Columbus 
during  his  last  voyage  (as  far  as  the  dukedom)  with 
the  addition  of  the  extension  ''from  Sea  to  Sea." 

The  King,  in  accord  with  the  Council  of  the  Indies, 
by  Royal  cedulas  counnunicated  to  Sanchez  de  Bad 
ajoz,  and  to  the  Audiencia,  on  April  24th,  1540  (Doc. 
No.  17),  declared  void  the  concessions  which  the  latter 
made  of  "the  lands  which  are  left  to  us  in  the  Province 
of  Veragua  *  *  *  because  this  is  a  matter  that 
must  be  treated  solely  by  our  Royal  Person  and  in  our 
Council  of  the  Indies." 

2.    Province  of  Cartago;  Govemment  of  Diego  Gutier- 
rez (1540). 

At  the  solicitation  of  Diego  Gutierrez,  brother  of 
Felipe,  and  in  accord  with  the  views  of  the  Council 
of  the  Indies,  the  Crown  authorized  him  to  undertake 
the  conquest  and  settloraont  of  Royal  Veragua,  and 


32 

issued  the  Royal  cedula  of  November  29,  1540  (Doc. 
No.  18),  which  approved  the  capitulacion.  and  con- 
ferred upon  him  by  Royal  codula  of  December  16  of 
the  same  year  (Doc.  No.  19),  the  title  of  Governor  of 
that  province,  which  was  then  designated  by  the  name 
of  Cartago. 

As  appears  from  these  documents,  the  government 
granted  to  Diego  Gutierrez  under  this  denomination 
of  Cartago,  is  the  same  as  that  which  the  Audiencia 
of  Panama  improperly  granted,  under  the  name  of 
Costa  Rica,  to  Sanchez  de  Badajoz,  but  with  greater 
precision  as  to  boundaries. 

The  line  of  the  dukedom  is  fixed  as  a  basis  by  the 
meridian  corresponding  to  the  termination  of  the 
twenty-five  leagues  which  were  to  end  towards  the 
Bay  of  Zoroharo;  the  province  stretches  in  length 
along  the  coast  as  far  as  the  River  Grande,  to  the  west 
of  Cape  Camaron;  its  width  is  fixed  as  from  "sea  to 
sea"  up  to  Nicaragua  and  then  limited  by  this  province 
to  fifteen  leagues  from  its  Lake  Nicaragua  and  by  that 
of  Honduras  as  far  as  the  River  Grande. 

This  demarcation  established  by  the  Royal  cedulas 
of  1540,  was  confirmed  bj^  that  of  January  11,  1541 
(Doc.  No.  20),  in  which  all  the  governors  of  the  prov- 
inces were  commanded  to  respect  the  boundaries  of 
the  Province  of  Cartago;  by  the  sentence  of  the  Coun- 
cil of  the  Indies,  of  April  9,  1541  (Doc.  No.  232),  in 
the  suit  instituted  in  regard  to  the  Desaguadero,  and 
by  the  Royal  cedula  of  May  9,  1545  (Doc.  No.  29), 
adding  the  Province  of  Cartago  to  the  Bishopric  of 
Nicaragua.  All  of  these  go  to  show  that  the  vague 
reference  to  the  Royal  Veragua,  made  in  the  Royal 
cedula  of  1537,  had  no  importance  and  even  no  legal 


f           , 

1 

/ 

w 

r-~*~N.^,.^^^fcw 

^Km 

^^v^                        rue  p»ovirj(£  OF  c/>ffr/f60   rcosr^  »/c/i) 

^^ffl 

^d^^^                                                                   "^-    /Si^O 

^H 

^^^^^^P^                                            seccMC'*/s     TO     TMt    otpf^^cmrfOff    ^fot 

^ 

^^^^^B                                            0r    rt/t   SMPtnom   CttitttLCi   V 

] 

^^^^HH                              (ffer»i  Ceo(/i*    or  MoviMee^  Jy,  /S«o) 

"  ^>>. 

^^^B 

^N^  \ 

^r 

^-^ 

^v«^^ 

^ 

1^ 

V    ^ 

j»-i.^-<^^^^^rx  J 

^^^^     c^   '^  y^  '^ 

%^^^\^             \ 

•v                   1 

X'                 ij 

33 

force  after  the  recognition  and  delimitation  of  the 
Province  of  Cartago. 

Diego  Gutierrez  died  in  a  fight  with  tlie  Indians,  and 
the  Crown,  in  conforaiity  with  the  designation  made 
by  his  son  in  favor  of  Juan  Perez  de  Cabrera,  con- 
ferred upon  the  latter  the  title  of  Governor  of  Cartago, 
on  February  22,  1549  (Doc.  No.  30).  The  Council  of 
the  Indies  having  agreed  that  the  conquest  of  this 
province  be  postponed,  Cabrera  was  transferred  to 
the  Government  of  Honduras  (1552). 

3.  Province  of  Cartago,  or  New  Cartago  or  Costa 
Rica,  From  the  Birth  of  the  Province  of  Ve- 
ragua  (1560). 

{(i)    Diffe.reniiaii(m.  of  the   Two    Veraguas,  After  the 
Suppression  of  the  Ducal  Seiguory. 

It  may  be  thought  that  by  the  retrocession  of  the 
Dukedom  of  Veragua  to  the  Crown,  in  1556,  the  dif- 
ference betw^een  the  Dukedom  of  Veragua  and  the 
Royal  Veragua  disappeared,  and  that  they  returned 
to  form  the  Province  of  Veragua  as  it  existed  before 
the  creation  of  that  dukedom  ])\  Royal  cedula  of  March 
2,  1537.  But  such  was  not  the  case,  for  each  con- 
tinued with  an  independent  life,  with  goverimiients  of 
distinct  origin  and  constituted  as  distinct  provinces 
under  different  names. 

We  have  already  seen  how  the  conquest  and  settle- 
ment of  the  suppressed  dukedom  was  made,  froni 
Tierra  Firme,  by  Frau'/isco  Vazcjuez,  under  whose 
conmiand,  as  Governor  and  Captain-General,  the 
Province  of  Veragua  was  organized  in  1560 — since  then 
tli(^  onh^  province  of  that  name. 


34 

In  order  that  tlie  ambiguity  of  tlie  denomination  oi 
VeragTia  might  disaj)pear  and  not  be  confused  with 
that  of  the  dukedom,  the  Audiencia  of  Panama  called 
the  Royal  Veragua  which  was  improperly  granted  to 
Sanchez  de  Radajoz,  Costa  Rica,  and  Charles  V  called 
that  same  X^eragua  which  he  granted  to  Diego  Gutier- 
rez, Cnriago,  perhaps  also  by  not  admitting  even  the 
name  of  that  grant  wliich  he  had  revoked. 

I'he  historian,  Fernandez  de  Oviedo,  says  that  Diego 
Gutierrez  ordered  that  his  Government  be  called  Car- 
tago  and  Costa  Rica,  under  penalty  of  a  hundred  lashea 
to  whoever  should  dare  to  call  it  Veragua.  In  the 
period  that  intervened  between  his  government  and 
the  year  157.'),  it  was  designated  indiscriminately  by 
the  names  of  Cartago,  New  Cartago  and  Costa  Rica, 
and  witii  eacli  change  the  latter  name  came  more  fre- 
quently to  be  used.  Costa  Rica  is,  then,  the  province 
that  was  definitively  constituted  in  1573  by  the  separa- 
tion of  the  portion  north  of  the  Desaguadero,  which 
was  to  be  called  the  Province  of  Teguzgalpa  to  dif- 
ferentiate it  from  that  of  Veragua ;  for  the  latter  was 
reserved  the  name  of  Veragua,  which  has  led  to  so 
much  confusion. 

Whilst  the  formative  current  of  the  Province  of 
Veragua  came  from  the  side  of  Tierra  Firme,  that  of 
the  Province  of  Costa  Rica  proceeded  from  Nicaragu-i 
and  Guatemala,  that  is  to  say,  from  the  opposite  side. 

ih)  Ortiz  de  Elgueta  (1559). 

The  King,  Don  Philip  II,  by  an  unquestionable  act 
of  sovereignty  and  without  the  intervention  of  any 
capitulacion  what<n'er,  entrusted  the  settlement  and 


35 

government  of  Royal  Veragua  to  the  Licentiate  Alonso 
Ortiz  de  Elgueta,  as  Alcalde  mayor  of  the  Province 
of  Nicaragua,  by  Royal  codula,  dated  a+  Toledo  De- 
cember 13,  1559  (Doc.  No.  34),  wliich  begins  thus: 

*'We  are  informed  that  betivten  that  Province 
of  Nicaragua  and  that  of  Honduras  and  the 
Desaguadero  of  Nicaragua,  on  the  side  of  {a  la 
parte  de)  the  cities  of  Nombre  de  Dios  and 
Panama,  between  the  South  Sea  and  that  of  the 
North,  there  are  many  Indians  without  liglit  or 
knowledge  of  the  faith,  but  who  have  shown 
great  evidences  of  yielding  obedience  and  re- 
ceiving the  Christian  doctrine;  and  since  we 
much  desire  that  this  country  may  be  settled 
and  properly  governed,  as  well  as  the  natives 
thereof  enlightened  and  taught  in  our  Holy 
Catholic  Faith,  and  also  that  the  Spaniards  who 
go  that  way  be  benefited  and  established  and 
may  have  a  fixed  location  and  livelihood  *  *  * 
We  directed  it  to  be  discussed  in  our  Council 
of  the  Indies  *  *  *  and  so  we  command  you 
that  you  undertake  the  same  *  *  *  and  in  the 
said  settlement  and  exploration  you  will  ob- 
serve, and  will  cause  to  be  observed,  the  direc- 
tions in  this  instnu'tion  contained,  which  are  as 
follows:"     (Then  follow  the  directions.) 

By  Royal  cedula  of  February  23,  1560  (Doc.  No.  37), 
this  resolution  was  communicated  to  the  Audiencia  of 
the  Confines  (Guatemala),  directing  it  to  give  to  the 
Licentiate  Ortiz  "every  encouragement  and  aid;"  and 
by  another  of  the  .same  date  (Doc.  No.  38)  the  com- 
mission conferred  upon  the  latter  was  reiterated,  with 
new  instructions;  in  the  latter  he  was  authorized,  as 
he  was  in  the  former,  to  give  lands  to  the  settlers  and 
to  exempt  them  from  imposts,  so  that  one  could  almost 
sav  that  it  had  the  character  of  a  carta  de  jxiblacion 


34 

(Royal  charter),  like  those  which  were  given  at  the 
period  of  the  Spanish  reconquest. 

In  both  of  these  Royal  cedulas  the  territory  allotted 
to  the  Alcalde  maijur  of  Nicaragua  is  described  in  the 
same  words  which  we  have  underlined  in  that  of  De- 
cember 13th,  from  which  it  may  be  instantly  inferred 
that  this  territory  was  the  same  that  was  granted  to 
Sanchez  de  i3adajoz  under  the  name  of  Costa  Rica, 
and  to  Diego  Gutierrez  under  that  of  Cartago,  though 
it  is  described  with  less  precision  of  boundaries  than 
in  the  latter  case. 

Tlio  illustrious  French  jurisconsult,  Monsieur  Poin- 
care,  says  in  the  third  Memorandum  in  defense  of  Co- 
lombia (No.  30),  that  "the  province  designated  under 
the  naiiie  of  Costa  Rica  in  the  cedula  of  February  23, 
15C0,  and  granted  to  the  Licentiate  Ortiz,  Alcalde 
mayor  of  Nicaragua,  did  not  embrace  the  ancient  Prov 
ince  of  Veragua  and  was  no  more  than  a  little  scrap 
of  land  {nn  petit  lambeau  de  terre)  included  between 
the  Provinces  of  Honduras  and  Nicaragua  and  the 
Desaguadero." 

But  in  reading  this  Royal  cedula,  the  name  of  Costa 
Rica  is  not  to  be  found;  on  the  other  hand,  it  may  be 
observed  that  ]\[onsieur  Poincare  has  omitted  the  last 
part  of  the  description  *  *  *  **on  the  side  of  the 
cities  of  Nombre  de  Dios  and  Panama,  between  the 
Soutli  Sea  and  that  of  the  North." 

With  the  text  thus  clipped,  the  result  for  Colombia 
wa>  that  " Ic  petit  lambeau  de  terre"  called  Costa 
Rica  was  the  Mosquito  Coast  extending  from  the  Desa- 
,ii:i!adero  or  Rivoi-  vSan  Juan,  toward  the  north,  which 
later  became  the  Province  of  Teguzgalpa.  And  if  it 
is  certain  that  tliis  portion  was  also  included  in  the 


sy 

Costa  Rica  of  Sanchez  de  Badajoz  and  the  Cartago  of 
Diego  Gutierrez,  it  is  not  tliat  the  territory  entrusted 
(not  granted)  to  the  Alcalde  mayor  of  Nicaragua 
should  terminate  at  the  Desaguadero,  but  that  it  was 
extended  "to  the  side  of  {a  la  parte  de)  the  cities  of 
Nombre  de  Dios  and  Panama,  between  the  South  Sea 
and  that  of  the  North,"  that  is  to  say,  as  far  as  Tierra 
Firme,  which  signifies  a  further  abrogation  of  the 
Royal  cedula  of  1537,  upon  wliich  Colombia  bases  her 
rights. 

(f)  Juan  de  Cavallon  (1560). 

While  Philip  II  conferred  upon  Ortiz  de  Elgueta 
the  commission  mentioned,  the  Audiencia  of  the  Con- 
fines (Guatemala)  gave  a  similar  charge  to  the  Licen- 
tiate Juan  de  Cavallon,  who  had  been  Alcalde  mayor 
of  Nicaragua ;  and  advised  the  King,  on  December  18, 
1559  (Doc.  No.  35),  that  it  had  commanded  him  to 
make  settlements  in  the  Province  of  Veragua  *' which 
is  otherwise  called  by  the  name  of  New  Cartago  *  *  • 
in  this  district  of  ours;"  the  Audiencia  also  issued  a 
Royal  provision  on  January  30,  1560  (Doc.  No.  36),  by 
which  the  said  Cavallon  is  granted  the  regulation  and 
license  to  explore,  settle  and  govern  (with  the  title  of 
Alcalde  mayor)  the  Province  of  Cartago,  or  New  Car- 
tago and  Costa  Rica,  from  that  of  Nicaragua. 

The  King  replied  to  the  Audiencia  of  the  Confines 
by  the  Royal  cedula  of  July  18,  1560  (Doc.  No.  39), 
which  begins  thus: 

"You  state  that  the  Province  of  Veragua, 
which  is  otherwise  called  by  the  name  of  New 
Cartago,  is  in  that  district  of  yours  and  border } 


38 

on  the  Pro\'ince  of  Nicoya,  where  we  alway.s 
have  a  corregidor,  *  *  * " 

And  referring  to  the  propositions  for  its  exploration 
and  settlement,  the  King  states  as  follows: 

''For  the  settlement  of  Nicoya  and  territory 
adjacent  thereto,  we  have  provided  the  Licen- 
tiate Ortiz,  our  Alcalde  mayor  of  the  Province 
of  Nicaragua,  to  whom  was  given  the  commis- 
sion necessary  therefor ;  and  as  to  the  territory 
that  there  is  in  Veragua,  on  the  side  of  Nata, 
Captain  Francisco  Vazquez  has  settled  it  by 
oui  order.  When  the  commission  of  each  rs 
examined  by  you,  the  proper  order  will  hi 
given." 

Colombia  has  brought  to  her  defense  a  report  pre- 
pared by  various  distinguished  archivists,  librarians 
and  lawyers  of  Seville,  where  the  Archives  of  the  In- 
dies are  kept,  concerning  this  Royal  cedula  of  July  18, 
1560;  they  interpret  it  as  follows: 

"The  King  established  with  perfect  clearness 
the  difference  that  there  is  between  the  territory 
of  Nicoya,  the  settlement  of  which  had  been 
entrusted  to  the  Licentiate  Ortiz,  and  the  other 
territory  not  contiguous  to  Nicoya,  territory  be- 
longing to  Veragua,  and  which,  also  by  Royal 
order,  the  Captain  Francisco  Vazquez  was  set 
tling.  The  expression  'on  the  side  of  Nata* 
(por  la  parte  de  Natd)  merely  indicates  the 
point  from  whence  Francisco  Vazquez  set  out 
with  his  men  to  conquer  the  territory  of  Ver- 
agua." 

Monsieur  Poincare,  making  this  report  his  own, 
states  that  there  had  been  omitted  in  the  copy  of  this 
Royal  codula,  cited  by  Costa  Rica,   a  comma  after 


30 

**Veragua"  and  before  '*on  the  side  of  Nata,"  that 
the  name  of  the  Licentiate  Ortiz  has  been  confused 
with  that  of  the  Licentiate  Cavallon,  and  that  the  grant 
to  the  Licentiate  Ortiz  was  from  Honduras  as  far  as 
the  Desaguadero  (third  Memorandum  of  Colombia, 
No.  30). 

Putting  aside  the  latter  assertion,  which  we  have 
just  refuted,  we  will  say  that  the  comma  does  not 
affect  the  sense  of  the  text,  which,  indeed,  could  not  be 
clearer.  The  Royal  cedula  does  not  place  t!ie  territory 
of  Nicoya  in  opposition  to  that  of  V^eragna,  nor  does 
it  say  tliat  only  the  former  was  entrusted  to  the  Licen- 
tiate Ortiz,  because  the  latter  belonged  to  the  othe.' 
conquest  which  Francisco  Vazquez  had  begun  by  Nata. 

What  this  Royal  cedula  does  state,  and  most  clearly, 
are  the  very  conclusions  we  have  just  presented;  that 
is,  that  the  ancient  Veragua  had  been  divided  into  two 
parts;  one,  the  grant  under  the  government  of  Fran- 
cisco Vazquez,  by  which  the  Province  of  Veragua  was 
instituted;  and  the  other,  that  which  was  entrusted 
to  Ortiz  de  Elgueta,  coterminous  with  Nicoya,  and  to 
which  the  Audiencia  of  the  Confines  referred  in  de- 
livering it  to  Cavallon,  and  of  which,  furthermore,  the 
King  had  disposed  in  conferring  it  upon  the  former. 
The  Royal  cedula  refers  precisely  to  the  commission 
given  to  the  Licenciate  Ortiz  who  is  mentioned  therein 
by  name,  which  commission  was  not  revoked  until  later, 
and  then  in  favor  of  Cavallon.  It  is  impossible  to 
interpret  a  legal  document  with  any  degree  of  certainty 
which  is  part  of  an  historical  series,  without  reading  it 
in  connection  with  its  antecedents ;  the  best  experts  will 
fall  into  error  if  they  do  not  follow  this  procedure  or 
if  they  undertake  to  consider  that  document  as  an 
isolated  fact. 


40 

How  Cavallon  himself  interpreted  the  concessioc 
made  to  him  by  the  Audiencia  of  the  Confines  is  very 
clearly  shown  by  tlie  legal  authority  which  he  granted 
on  September  22nd,  1560  (Doc.  No.  41),  to  his  asso- 
ciate and  deputy,  Juan  Estrada  Ravago,  so  that  he 
might  represent  him  in  his  charge  and  undertaking. 
Cavallon  declares  that  the  Province  of  Cartago  and 
Costa  Rica,  the  settlement  of  which  belonged  to  him, 
* '  *  *  *  is  all  the  territory  that  is  left  in  the  Prov- 
ince of  Veragua,  from  sea  to  sea,  inclusive,  and 
which  begins  from  where  ends  the  square  of 
twenty-five  leagues  that  His  Majesty  granted  to 
the  Admiral  Don  Luis  Columbus,  towards  the 
West  *  *  *  and  it  terminates  at  the  Rio  Grande, 
towards  the  West,  on  the  other  side  of  Cape 
Camaron." 

Philip  II,  who  had,  as  we  have  seen,  reserved  the 
right  to  provide  in  regard  to  the  matter,  acted  by  Royal 
cedula  of  Fel)ruaiy  5,  1561  (Doc.  No.  42),  addressed  to 
the  Audiencia  of  the  Confines,  saying  that  he  revoked 
the  commission  which  he  had  given  to  Licentiate  Ortiz, 
and  directed  that  the  Licentiate  Cavallon  execute  it 
under  the  same  conditions  provided  as  to  the  former, 
and  that,  if  the  latter  did  not  accept  it,  a  Judge  of  the 
said  Audiencia  should  go,  or  that  body  should  appoint 
another  person  to  carry  out  the  commission  in  the  same 
manner.  The  same  directions  were  given  in  another 
Royal  cedula  of  the  same  date,  addressed  to  Cavallon. 

It  is  clearly  understood  that  when  the  King  turned 
over  to  Cavallon  the  undertaking  he  had  entrusted  to 
Ortiz,  he  performed  an  act  of  pure  sovereignty,  estab- 
lishing thereby  a  different  demarcation  of  the  Province 
of  Veragua  which  was  under  the  charge  of  Francisco 
Vazquez. 

In  view  of  the  results  of  the  expeditions  of  Cavallon 


41 

the  Audioncia  of  the  Confines  thereunto  duly  author- 
ized, appointed  him,  by  Royal  provision  of  May  17, 
1561  (Doc.  No.  44),  Alcalde  mayor  of  New  Cartage 
and  Costa  Rica,  and  stated  that  liis  jurisdiction,  was 
to  extend 

"*  *  *  from  the  boundaries  of  the  villai^e  of 
Nic'oya,  of  the  said  Province  of  Nicaraiiua,  for- 
ward *  *  *  as  far  as  the  limits  and  jurisdiction 
of  the  city  of  Nata,  of  the  Kingdom  of  Tierra 
P^irme,  called  Castilla  del  Oro,  the  length  of  the 
land  to  the  borders  of  the  Dukedom  of  Veragua, 
and  from  the  South  Sea  to  the  North  Sea,  as  far 
as  the  Desaguadero,  inclusive." 

The  King,  by  Royal  cedulas  of  August  4,  1561  (Doc. 
Nos.  45,  46  and  47),  confirmed  the  appointment  of 
Cavallon  as  Alcalde  mayor  and  of  Estrada  Ravago  as 
his  representative,  congratulating  both  at  the  same 
time  upon  the  success  of  their  expeditions,  the  one  by 
land  and  the  other  by  sea;  and  he  authorized  Cavallon 
to  go  back  whenever  he  might  desire  to  reside  in  the 
Audiencia  of  the  Confines,  of  which  he  was  appointed 
the  Fiscal. 

(d)  Denial  of  the  Request  of  the  Governor  of  Tierra 
Firmc,  Figuerola  (1561). 

Don  Rafael  Figuerola,  Governor  of  Tierra  Firme, 
having  received  word  of  the  death  of  the  Governor  of 
the  Province  of  Veragua,  Francisco  Vazquez,  and  that 
the  Audiencia  of  the  Confines  had  authorized  the  Li- 
centiate Cavallon  "to  make  the  entry  into  Costa  Rica," 
applied  to  the  King  for  his  own  ap])ointment  as  Gov 
ernor  of  the  Province  of  Veragua,  and  asked  that  the 
entry  into  that  of  Costa  Rica  should  be  prohibited  to 
everybody  who  did  not  come  from  him ;  he  based  this 


42 

latter  ie(|uest  upou  the  fact  that  the  Count  of  Nieva, 
Viceroy  of  Peru,  had  authorized  him  to  enter  into  the 
Dukedom  of  Vera<aia,  as  he  in  fact  had  done,  continu- 
ing into  the  ''interior  territoiy,"  as  he  showed  in  the 
report  of  an  inquest,  which  accompanied  his  applica- 
tion (Doc.  No.  233). 

Philip  n  communicated  to  him,  by  Royal  cedula 
dated  at  Madrid  on  August  9th,  1561  (Doc.  No.  48), 
the  following  resolution  which  is  of  the  greatest  im- 
portance to  the  question  we  are  discussing: 

ii*  »  *  ^g  gQQjj  jjg  w'(3  knew  the  death  of 
Francisco  Vjizquez,  wliom  We  had  designated 
for  the  government  of  the  said  Province  of  Vera- 
gua,  We  appointed  for  the  said  government 
Francisco  Vazquez,  his  son  *  *  *.  And,  also, 
We  have  approved  and  held  to  be  good  the  said 
commission  that  was  given  by  the  said  Audien- 
cia  of  the  Confines  to  the  said  Licentiate  Caval- 
Ion,  in  order  to  make  the  exploration  of  the 
Province  of  Cartago  and  Costa  Rica  *  *  * ; 
therefore,  I  conmiand  you  that  *  *  *  you 
leave  the  Government  of  the  said  Province  of 
Veragua  to  the  said  Francisco  Vazquez,  and  that 
you  do  not  interfere  to  explore  and  settle  the 
said  Province  of  Cartago  and  Costa  Rica,  but 
leave  it  to  be  done  by  the  said  Licentiate  Caval- 
lon  *  *  *  and  if  you  shall  have  made  any 
discovery  or  settlement,  you  shall  leave  it  in 
the  state  and  condition  it  may  be,  without  doing 
more  therein ;  and  this  you  shall  do  and  comply 
with  under  the  penalties  imposed  upon  persons 
who  do  not  obey  the  commands  of  their  King 
and  natural  Lord." 

Monsieur  Poincare,  in  the  third  Memorandum  of 
Colombia  hereinbefore  cited  (No.  32),  attaches  little 
importance  to  this  Royal  cedula;  he  says  that  it  shows 


43 

that  Costa  Rica  bordered  on  the  Proviuee  of  Veragua 
and  was  distinguished  from  it,  but  that  the  Province 
of  Veragua  was  distinct  from  the  okl  dukedom  "at- 
tached {rait ache)  to  the  city  of  Nata,"  and  that  just 
as  it  was  defined  by  the  Royal  cedula  of  1537  it  be- 
longed jointly  with  the  dukedom  itself  to  the  Audiencia 
of  Panama. 

So,  then,  if  Costa  Kica  bordered  on  the  Province  of 
Veragua  and  was  distinguished  therefrom,  it  is  clear 
that  it  wan  not  the  Province  of  Veragua.  The  petition 
of  Don  Kafael  Figuerola  giving  expression  to  a  per- 
sonal desire  was  the  same  as  the  claim  of  Colombia  and 
was  based  upon  the  following  syllogism:  All  Veragua 
constitutes  one  entity  and  belongs  to  the  Government 
of  Tierra  Firme;  the  Dukedom  of  Veragua  and 
Costa  Kica  are  also  Veragua  and  1  am  Governor  of 
Tierra  Firme;  therefore  place  me  in  possession  of 
the  Dukedom  of  Veragua  and  of  Costa  Rica.  But 
the  King  denied  his  petition,  declaring  that  V^eragua 
and  Costa  Rica  were  tw^o  distinct  provinces,  with  dif- 
ferent governments  and  forbade  his  interference  in 
either  of  them. 

Substitute  the  name  of  Colombia  or  Panama  for 
Figuerola,  and  that  of  the  xYrbitrator  for  Philip  11, 
and  the  present  conflict  wouki  be  solved,  without,  how- 
ever, denying  to  Panama  her  rights  over  the  Province 
of  Veragua  as  differentiated  from  Costa  Rica. 

(e)   Vazquez   de  Coronado    (1562). 

Cavallon  having  left  to  assume  his  oilier  of  Fiscal 
of  the  Audiencia  of  the  Confines,  the  latter  appointed 
Juan  Vazquez  de  Coronado  as  Ahalde  mayor  of  New 


44 

Cartago  and  Costa  Rica,  in  the  Royal  provision  of 
April  2,  15G2  (Doc.  No.  49),  and  prescribed  for  that 
office  the  same  conditions  as  were  imposed  on  Cavallon 
when  the  latter  "was  given  jurisdiction." 

Philip  TI,  well  pleased  with  the  great  services  of 
Vazquez  de  Coronado,  appointed  him,  by  the  Royal 
codula  of  April  8, 1565  (Doc.  No.  52),  Governor  for  the 
whole  of  his  life  of  "the  Province  and  territory  of 
Costa  Rica,"  with  all  the  necessary  civil  and  criminal 
jurisdiction.  On  the  same  date  he  also  appointed  him 
Governor  of  Nicaragua  for  three  years,  in  order  to 
facilitate  tlie  settlement  of  Costa  Rica,  conferred  upon 
him  the  title  of  Adelantado  of  Costa  Rica,  for  himself 
and  his  successors  (Doc.  No.  53),  and  made  him  a 
grant  of  a  square  of  land  four  leagues  on  each  side, 
wherever  he  might  select  them  in  the  latter  province. 
Costa  Rica,  therefore,  as  may  be  seen,  remained  con- 
stituted as  such  province  and  was  to  have  its  own 
governor — an  office  which  was  increased  in  importance 
through  the  fact  that  an  Adelantado  was  going  to  be 
the  first  to  hold  it. 

The  King  instituted  the  province,  provided,  as 
stated,  with  a  governor,  under  the  single  name  of 
Costa  Rica,  and  to  it  was  given  the  same  extension 
which  was  determined  upon  when  it  was  alloted  to 
Ortiz  de  Elgueta;  this  is  shown  by  the  Royal  cedula  of 
August  7,  1565  (Doc.  No.  54),  directed  to  Coronado, 
which  l)egins  thus: 

"To  Juan  Vazquez  de  Coronado,  our  Gover- 
nor of  the  Province  of  Nicaragua  and  Costa 
Rica,  and  Adelantado  of  the  said  Province  of 
Costa  Rica:  Having  been  informed  that  between 
the  said  province  of  Nicaragua  and  that  of  Hon 


45 

duras  and  the  Desagnadero  of  Nicaragua,  oyi  the 
side  of  (a  la  parte  de)  the  cities  of  Noinbre  de 
Dios  and  Panama,  between  the  South  Sea  and 
thai  of  the  North,  lay  the  said  PR()VIX(^E  OF 
COSTA  RICA,  and  that  there  were  tlierein  many- 
Indians  without  light  or  knowledge  of  the  faith, 
but  who  have  shown  a  great  desire  to  accept  our 
authority,  and  receive  the  Christian  doctrine,  the 
President  and  Judges  of  our  Royal  Audiencia  of 
the  Confines  ordered  you  and  gave  you  a  com- 
mission in  our  name  and  that  you  should  go  and 
make  settlements  therein  *  *  *  ^nd  place 
under  our  Crown  and  Royal  Lordship  the  said 
*    *    *    territory." 

And  after  stating  what  Coronado  had  done  and  that 
he,  the  King,  had  directed  "its  consideration"  in  the 
Council  of  the  Indies,  he  charged  him  tliat  "this  teiTi- 
tory  shall  be  settled  and  placed  under  good  adminis- 
tration and  order,"  for  which  purpose  he  gave  to  him 
the  proper  instruction. 

This  Royal  ccdula  is  a  repetition  of  the  one  directed 
to  Ortiz  de  Egueta,  and  contains  the  same  stateiuenr. 
of  boundaries  in  almost  the  same  language,  but  in  this 
ccdula  the  expression  "the  Provinc^e  of  Costa  Rica," 
is  used  concretely,  the  direction  given  by  the  Audiencia 
of  the  Confines  to  Coronado  is  confirmed  and  the  work 
of  exploration  and  settlement  already  realized  within 
those  boundaries  is  approved,  and  anlhorizatiou  is 
given  for  its  conclusion  in  the  same  way  tliat  it  had 
been  begun. 


-ft" 


(/)  Perafdn  de  Rihera  (1566). 

Vazquez  de  Coronado  having  perished  on  his  return 
voyage  to  America,  the  King  appointed  Perafan  de 


46 

Ribera  Governor  of  the  Province  of  Costa  Rica,  by 
the  Royal  cedula  of  July  19,  1566  (Doc.  No.  56) ;  this 
cedula,  however,  does  not  indicate  the  boundaries  of 
the  territory,  the  same  having  been  already  fixed; 
l>nt  it  does  state  that  the  governor  shall  exercise  his 
office  "in  the  matters  that  it  has  been  customary  for 
the  Governors  who  have  been  up  to  this  time  in  tho 
said  province  to  conduct." 

Perafiin  de  Ribera  continued  the  work  of  his  prede- 
cessors, and  presented  to  the  King  on  July  28,  1571 
(Doc.  No.  58),  a  "Relation  of  the  Province  of  Costa 
Rica,"  in  which  he  gives  a  report  of  his  journeys  and 
of  the  condition  in  which  that  province  was  found. 
Wearied  by  his  labors  and  broken  down  by  his  mis- 
fortunes and  poverty,  he  resigned  his  government  and 
left  the  province  in  1573. 

4.    The    Province    of    Costa    Rica    Definitively    Or- 
ganized; Government  of  Artieda  (1573). 

Cavallon,  Estrada  Ravago,  Vazquez  de  Coronado 
and  Perafan  de  Ribera  were  the  ones  who  by  their 
conquests  and  establishments  created,  in  fact,  the  Prov- 
ince of  Costa  Rica  and  within  the  legal  boundaries 
established  by  the  Crown,  at  the  initiation  of  that  work 
of  discovery  and  settlement,  by  the  orders  and  in- 
structions given  to  the  Alcalde  mayor  of  Nicaragua, 
Ortiz  de  Elgueta. 

Philip  II,  knowing  the  results  of  the  work  he  had 
undertaken,  and  considering  the  general  advantages  to 
be  derived  from  those  portions  of  his  dominions,  was 
able  with  full  knowledge  of  the  matter  to  definitively 
constitute  the  Province  of  Costa  Rica  and  trace  its 
boundaries   with   certainty,   as   he   did  by  his  Royal 


47 

cedula  dated  at  the  Pardo,  December  1, 1573  (Doc.  No. 
62). 

(a)  lioyal  Cedula  of  Philip  II,  of  December  1 ,  1573. 

This  Royal  cedula,  issued  after  consultation  with  the 
Council  of  the  Indies,  contains  the  capitulacion  with 
Diego  de  Artieda,  to  discover,  settle  and  pacify,  at  his 
own  cost,  the  Province  of  Costa  Rica,  for  which  pur- 
pose he  was  granted  the  Government  and  Captaincy- 
General  of  this  province  for  his  own  life  and  that  of 
an  heir,  with  a  salary  of  two  thousand  ducats. 

The  conditions  under  which  he  was  to  settle  and 
govern  the  province  were  minutely  fixed,  and  its  boun- 
daries indicated  witii  great  precision;  he  was  also  di- 
rected therein  to  take  possession  in  the  name  of  the 
King  *'of  that  which  might  not  have  been  appropri- 
ated." 

Twice  are  the  boundaries  fixed:  the  first  time  in 
great  detail,  when  the  method  to  be  pursued  in  making 
the  discovery  and  settlement  is  prescribed;  the  second, 
in  more  concise  terms,  when  the  government  is  granted 
to  Artieda. 

In  this  second  description  of  the  Province  of  Costa 
Rica,  which  Artieda  is  about  to  discover,  settle,  pacify 
and  govern,  the  Royal  cedula  of  1573  says  that  it  is 

*****  from  the  North  Sea  to  that  of  the 
South  iw  latitude,  and,  in  longitude  from  the 
borders  of  Nicaragua,  on  the  side  of  Nicoya, 
straightforward  to  the  Valleys  of  Chiriqui,  as 
far  as  the  Province  of  Veragua  on  the  South 
side;  and,  on  that  of  the  North,  front  the  mouths 
of  the  Desaguadero,  which  is  on  the  side  of 


43 

Nicaragua,  all  the  territory  as  far  as  the  Prov- 
ince of  Veragua. " 

According  to  this  demarcation,  by  virtue  of  the 
Royal  cedula  of  1573,  there  was  segregated  from  the 
Province  of  Costa  Rica  its  upper  part,  from  the  Desa- 
guadero  of  Nicaragua  northward;  with  this  part  the 
Province  of  Teguzgalpa  (on  the  Mosquito  Coast)  was 
foiTued,  and  the  differentiation  of  the  Provinces  of 
Costa  Rica  and  Veragua  was  conhrmed,  thus  leaving 
Costa  Rica  between  Teguzgalpa  and  Veragua. 

(h)  Formation  of  the  Province  of  Teguzgalpa  by  the 
Segregation  of  that  of  Costa  Rica  Prior  to  1573. 

Comparing  the  demarcation  of  the  Royal  cedula  of 
1573  with  the  earlier  demarcations  of  Costa  Rica,  it 
will  be  at  once  observed  in  the  description  that  part  of 
those  demarcations,  *M)etween  the  Province  of  Nicar- 
agua and  Honduras  and  the  Desaguadero  of  Nicara- 
gua ' '  was  suppressed,  by  which  suppressed  part  it  had 
been  made  to  reach  from  the  latter  as  far  as  the  River 
Grande  and  Cape  Camaron.  The  Royal  cedula  fixed  as 
the  northern  boundary  of  the  Province  of  Costa  Rica 
the  Corregimiento  of  Nicoya  and  the  Desaguadero  of 
Nicaragua. 

By  this  adjustment  tribute  was  paid  to  historical 
fact,  and  concession  made  to  convenience  in  adminis- 
tration, for  although  that  portion  was  included  in  the 
demarcation  of  Ortiz  de  Elgueta,  those  who,  in  ac 
cordance  therewith — Cavallon,  Estrada,  Coronado  and 
Ribera — made  the  conquest  and  the  establishments  of 
Costa  Rica,  concentrated  their  undertakings  between 
the  Desaguadero  and  the  Province  of  Veragua,  and  the 


49 

King  acted  with  much  discernment  in  segregating  the 
upper  territory  which,  from  its  geographical  form  and 
its  distance  from  the  capital,  presented  great  difficul- 
ties in  the  way  of  administration. 

This  very  segregation  is  the  best  proof  of  the  error 
of  Colombia's  counsel  who  located  the  little  scrap  (/<? 
petit  Jamheau)  called  Costa  Rica  in  the  portion  segre- 
gated, when  in  fact  the  province  of  that  name  was 
definitively  constituted  at  the  time  it  lost  that  portion. 

The  result  of  that  Royal  cedula  of  1573  was  the  issu- 
ance of  that  of  February  10,  1576  (Doc.  No.  65),  by 
which  Philip  II  created  the  Pro^'ince  of  Teguzfialpa  out 
of  the  segregated  territory  giving  it  by  capitulaci6)i  to 
Diego  Lopez  for  settlement  and  government — a  region 
"which  comprises  all  the  territory  that  is  included 
from  the  mouth  of  the  Desaguadero  on  the  North  side 
as  far  as  Cape  Camaron,  in  the  same  direction  where 
the  Province  of  Honduras  begins  *  *  *"  (Doc.  No. 
234). 

This  territoiy  bordering  on  Honduras  and  wii^v 
Nicaragua  was  for  a  long  time  disputed  by  these  Re- 
publics, until  His  Majesty  the  King  of  Spain,  as  arbi- 
trator, decided  the  boundary  question  between  the  two 
in  his  Award  of  December  23,  1906  (Doc.  No.  437), 
fixing  the  point  of  the  divisional*}'  line,  for  the  part  that 
belongs  to  each,  at  Cape  Gracias  a  Dios. 

In  that  arbitration  Don  Francisco  Silvela  defended 
Honduras  and  Don  Antonio  Maura  represented  Nica 
ragua.  These  are  the  same  two  distinguished  juris- 
consults who  have  defended  the  rights  of  Colombia 
by  maintaining  that  to  her  belonged  all  of  the  Veragua 
of  the  year  1537,  and  making  that  province  reach  as 
far  as  Cape  Gracias  a  Dios. 


50 

However,  in  the  eonrse  of  the  argument  in  that  arbi- 
tral proceeding,  both  agreed  in  disregarding  the  claims 
of  Colombia  to  the  territorv  of  Veragua  which  began 
at  the  Desaguadero  and  which  was  called  the  Province 
of  Teguzgalpa. 

Senor  Silvela  alleges,  as  one  of  the  principal  bases 
of  the  right  of  Honduras,  the  capitulacion  of  Artieda, 
of  December  1,  1573.  saying  distinctly:  "THERE  IS 
ONE  SINGULAE  THiXG  Ds  THIS  CAPITULA- 
CICX  AND  THAT  IS  THE  FIXING  DEFINI- 
TR-ELY  OF  THE  BOUXDAEIES  OF  COSTA 
RICA/'    {Alegato  of  Honduras,  1905,  p.  128.) 

Senor  Maura,  in  the  Replica  of  Nicaragua,  1905,  as- 
serts that  the  Cartago  of  Diego  Gutierrez's  capitula- 
don  of  1540  was  framed  out  of  the  remains  of  the 
break-up  or  division  of  the  ancient  Province  of  Ver- 
agua (p.  109) ;  that  the  capitulacion  of  Artieda,  of 
1573,  clearly  distinguished  Costa  Rica  from  the  Prov- 
ince of  Nicaragua  (p.  72) :  that  nothing  is  so  conclusive 
as  the  capitulacion  of  Diego  Lopez,  of  1576,  in  which 
there  was  included  (in  order  to  form  the  Province  of 
Teguzgalpa)  all  of  the  territory  from  the  Desagua- 
dero to  Cape  Camaron  (p.  73) ;  and  that  neither  Hon 
duras  nor  any  one,  casts  doubt  of  the  annexation  to 
Nicaragua  of  the  said  coastal  zone  from  the  Desa- 
guadero or  San  Juan  river  toward  the  north  or  the 
northeast  (p.  77). 

Costa  Rica,  then,  can  rely  for  support  on  the  author- 
ity of  Senores  Silvela  and  Maura,  counsel  for  Colom- 
bia, to  combat  the  following  broad  assertion  made  by 
the  latter  in  her  Summary  of  Conclusions,  presented 
to  the  President  of  the  Republic  of  France  and  sub- 
scribed by  Monsieur  Poincare  in  Paris  on  July  4, 1900 : 


51 

**A11  the  ProviiK-e  of  Veragua  onght  then  to 
belong  to  Colombia.    From  its  origin  the  Prov 
ince  of  Veragna  extended  as  far  as  Cape  Gra 
cias  a  Dios,    (See  the  Eoyal  eedula  of  March  2. 
1537. )    It  has  never  been  divide*!.  * ' 

» Toute  la  Province  de  Veragua  doit  done  ap 
partenir  a  la  Colombie.     T>^  I'origine.  la  Pro- 
vince de  Veragna  s"est  jusj-jn'an  cap  de 
Graeias  a  Dios  (Voir  t      -.    .^^^^vale  dn  2  Mars 
1537).  Elle  n'a  jamais  ete  divisee. 

B  ■mduries  With  the  ProrMk.'"      '^  ^  m/jiuj. 


T::r  lemarcation  made  to  Ortiz  de  Eigueta  (from 
the  t».:»iiii<iary  of  the  s  crres^ted  tenritory  with  which 
Tegnzealpa  was  formed)  extended  from  sea  to  sea. 
•"to  the  side  of  (a  //?  parte  de)  the  cities  of  Xombre 
de  Dios  and  Panama."  The  Roval  eednla  of  1573 
clearly  fixed  the  Province  of  Veragna  as  the  end  of 
Costa  Kica,  both  on  the  north  and  on  the  south;  it 
did  more,  since  it  expressly  include*!  within  Costa  Rica 
the  Bo»?as  del  Dra^o  on  the  north,  and  on  the  south 
the  Valleys  of  Chiriqui. 

In  prescribing  the  manner  in  which  Artieda  was  to 
carry  out  his  qharge,  he  is  told  ***  *  *  and  vou 
shall  settle  in  the  Province  of  Costa  Rica  three  cities, 
*  *  *  one  of  which  must  be  at  the  Port  of  Bocas  del 
Drago,  which  is  on  the  North  Sea  of  said  province." 

By  this  name  of  Bocas  del  Drago  there  was  desig- 
nated the  Bay  of  Ahnirante  and  the  Lagoon  of 
Chiriqui,  into  which  empties  the  GuaymL  San  Diego  or 
Cricamola  river,  it  being  perfectly  explained  that  its 
adjoining  territories  were  included  in  Costa  Rica  be 
cause  they  had  been  traversed  and  conquered  by  thf 
founders  of  this  province,  with  the  approval  and  prais*,- 


52 

of  the  Iving.  Estrada  Ravage  foiuuled,  in  1560,  the 
city  of  Castillo  de  Austria  on  tlie  Bay  of  Almirante; 
Juan  Vazquez  de  Coronado,  in  1564,  subjected  all  the 
tribes  of  Indians  that  occupied  its  banks  nearly  as  far 
as  the  Escudo  de  Veragua;  and  Perafjin  de  Ribera 
traversed  the  same  territories  in  1570  and  1571. 

Diego  de  Artieda  always  understood  that  they  be- 
longed to  his  Government,  as  is  shown  by  his  deeds  and 
his  communications  to  the  King,  during  the  fourteen 
years  in  which  he  had  it  in  charge.  The  Royal  cedula 
of  August  30, 1576  (Doc.  No.  66),  contains  this  phrase: 
II*  •  *  ^|.  bgjjjg  very  well  known  that  the  said 
Guaymi  river  and  Bocas  del  Drago  and  the  Almirante 
Bay  are  the  same  thing. ' '  The  former,  in  fulfillment  of 
the  duty  of  founding  a  city  at  Bocas  del  Drago, 
founded  the  one  that  he  called  *'  Artieda,"  on  the  banks 
of  the  Guaymi  river,  as  is  evidenced  by  the  certificate 
of  December  8,  1577  (Doc.  No.  67) ;  and  afterwards  he 
took  possession  of  the  Valley  of  Guaymi,  as  is  evi- 
denced by  a  certificate  delivered  by  a  notary  in  March, 
1578  (Doc.  No.  68).  In  front  of  this  valley  is  the 
island  called  Escudo  de  Veragua.  The  King  showed 
in  his  cedulas  of  June  3,  1580  (Doc.  No.  69),  that  he 
was  informed  of  and  satisfied  with  the  settlements 
made  by  Artieda  at  Bocas  del  Drago. 

After  Artieda,  the  indication  of  Escudo  de  Veraguas 
was  confirmed  as  the  point  of  the  divisionary  line  which 
left  within  Costa  Rica  the  lands  adjoining  the  Bay  of 
Almirante  and  the  Lagoon  of  Chiriqui. 

The  Royal  cedula  of  Philip  III  of  May  31, 1600  (Doc. 
No.  71),  directed  to  the  Audiencia  of  Panama,  indi 
cated  the  Island  of  Escudo  de  Veragua  as  the  end  or 
western  extremity  of  the  warring  Indian  tribes  of  the 


53 

Province  of  Veragua.  In  a  certificate  delivered  by  a 
notary  on  October  10,  1605  (Doc.  No.  72),  Don  Diego 
de  Sojo  testifies  that  by  virtue  of  the  commission  given 
to  him  by  Don  Juan  de  Oeon  de  Trillo,  Governor  and 
Captain-General  of  Costa  Rica,  and  in  the  name  of  the 
King,  he  founded  the  city  of  Santiago  de  Talanianca 
and,  he  says,  he 

a*  *  *  iiiflieatod  for  it  and  gave  to  it  for 
jurisdiction  in  latitude  all  the  territory  and  dis 
trict  which  there  is  from  the  summit  of  the  Cor- 
dillera to  the  North  Sea,  and  in  lougitude  from 
the  river  Tarire  and  the  ford  that  is  crossed 
going  from  the  said  city  to  the  Province  of 
Tariaca,  all  the  territory  that  runs  to  the  East, 
which  is  the  length  of  it  as  far  as  the  Escudo 
DE  Veragua,  ivhicli  is  the  end  that  separates  this 
Government  from  that  of  Veragua." 

The  Province  or  region  of  Talamanca  continued  to 
belong  to  Costa  Rica  during  the  whole  of  the  Spanish 
domination. 

'J'he  Valleys  of  CJiiricjui  constitute  that  part  of  th  ' 
Province  of  Costa  Rica  which  borders  upon  that  of 
Veragua,  on  the  Pacific  side.  Colombia  argues  in  her 
Memoranda  (Second,  p.  89,  and  Third,  No.  47),  that  the 
capitulaeion  of  Artieda  does  not  speak  of  the  Valleys 
of  Chiriqui  as  a  foreign  frontier  with  Veragua,  but 
only  as  designating  a  bearing,  as  though  to  say  "in 
the  direction  of"  those  valleys.  But  the  text  of  the 
Royal  cedula  of  1573  does  not  admit  of  this  int.M-- 
pretation,  for,  in  stating  the  longitude  of  the  Province 
of  Costa  Rica,  it  says  specifically,  "from  the  borders 
of  Nicaragua,  on  the  side  of  Nicoya,  straightforward 
{dereeho  a)  to  the  Valleys  of  Chiriqui,  as  far  as  the 
Province  of  Veragua,  on  the  South  side."    The  direc- 


54 

tion  was  indicated  by  the  South  Sea,  that  is  the  Pacific 
Ocean;  and  in  this  direction  the  Royal  ceduhi  expressly 
declared  the  right  of  Costa  Rica  to  the  Valleys  of 
Chiriqui.  If  it  is  claimed  that  those  valleys  only  indi- 
ciited  a  direction,  the  loDji^itude  of  Costa  Rica  may  be 
continued  still  further  beyond  them  and  its  terminal 
extended  "as  far  as  the  Province  of  Veragua." 

Such  a  declaration  of  right  is  not  strange,  inasmuch 
as  Vazquez  de  Coronado  and  Perafan  de  Ribera  had 
traversed  and  taken  possession  of  the  plains  or  savan- 
nas of  Chiriqm,  and  had  considered  them  to  be  within 
their  jurisdiction. 

Although  Costa  Rica  had  the  right  to  the  Valleys  of 
Chiriqui,  the  later  governors  tolerated  the  encroach- 
ments of  the  Governors  of  Veragua  as  far  as  the 
Chiriqui  Vie  jo  river  {old  Chiriqui  river — not  to  be 
confused  with  others  of  the  same  name  not  having  this 
qualification) ;  and  this  river  was  left  as  the  divisionary 
line  of  Costa  Rica,  which  meant  for  that  country  a  loss 
of  208  square  leagues  (1872  square  miles). 


V. 


THE  QUESTION  OF  BOUNDARIES  SETTLED  BY 

THE  ROYAL  CEDULA  OF  1573  AND  NOT 

BY  THAT  OF  1537. 

1.     Importance,  Confirmation  and  Subsistence  of  the 
Royal  Cedula  of  1573. 

The  Royal  cedula  of  Philip  II  of  December  1,  157:?, 
is  immensely  important  because  it  settled  the  question 
of  boundaries  pending  between  the  Republics  of  Costa 
Rica  and  Panama,  as  far  as  relates  to  Spanish  colonial 


55 

law,  for  thereunder  the  Province  of  Costa  Rica  was 
definitively  constituted  and  marked  out;  its  legal  ex- 
istence and  delimitation,  however,  is  denied  by  the  Re- 
public of  Panama,  the  successor  to  that  of  Colombia, 
on  the  assumption  that  it  belonged  to  the  latter  as  an 
integral  part  of  the  ancient  Veragua. 

It  results  from  all  that  has  been  said  in  the  first  part 
of  our  opinion,  that  the  Royal  cedula  of  1573  marked 
the  end  of  the  historico-legal  evolution  of  Veragua, 
from  the  time  when  the  whole  of  the  coast  discovered 
by  Columbus,  from  Cape  Honduras  to  the  point  of 
San  Bias,  was  understood  by  that  designation  until  it 
came  to  constitute  three  distinct  provinces:  that  of 
Veragua,  properly  so-called,  that  of  Costa  Rica  and 
that  of  Teguzgalpa.  The  differentiation  of  the  primi- 
tive Veragua  into  two  parts,  the  Ducal  Veragua  and 
the  Royal  Veragua,  began  by  the  creation  of  the  Duke- 
dom of  Veragua  (1537)  and  the  granting  of  the  capitu- 
lacion  of  Diego  Gutierrez  (1540),  the  result  of  which 
was  the  organization  of  two  different  provinces,  in 
1560:  the  Province  of  Veragua,  under  Francisco 
Vazquez  and  that  of  Costa  Rica  under  Cavallon.  The 
Royal  cedula  of  1573  divides  the  latter  into  two  parts : 
that  which  is  called  Teguzgalpa  and  that  properly  de- 
nominated Costa  Rica,  in  which  latter  is  included  Bocas 
del  Drago  and  the  Valleys  of  Chiriqui,  places  border- 
ing upon  the  Province  of  Veragua. 

The  demarcation  established  in  this  Royal  cedula  of 
1573  was  confirmed:  (1)  by  that  of  February  18,  1574 
(Doc.  No.  63),  which  conferred  upon  Diego  de  Artieda 
the  title  of  Governor  and  Captain-General  of  Costa 
Rica,  and  fixed  at  the  same  time  the  boundaries  of  his 
jurisdiction;  (2)  by  the  Royal  cedula  of  December  29, 
1593   (Doc.  No.  70),  giving  the  government  of  this 


56 

province  to  Don  Fernando  de  la  Cueva  **as  it  was 
held  by  Diego  de  Artieda  Ohirino;"  and  (3)  by  the 
other  Royal  cedillas  appointing  governors  and  cap 
tains-general,  who  held  the  position  with  the   same 
salary  and  within  the  same  bounded  territory. 

This  demarcation  is  also  confinned  by  the  facts  to 
which  we  have  referred  relating  to  the  boundaries,  and 
many  acts  of  the  Superior  Government,  of  the  aud- 
iencias  and  of  the  governors,  relating  thereto  may  be 
cited,  since  it  was  in  force  and  subsisted  until  the  end 
of  the  Spanish  domination.  Counsel  for  Colombia  do 
not  mention  any  other  legal  demarcation  as  a  substi- 
tute therefor,  aside  from  what  is  stated  in  order  to 
impugn  it;  but  seek  for  support  in  the  Recopilacion 
de  Indias  and  in  the  Royal  order  of  1803. 


2.    Inefficacy  and  Abrog^ation  of  the  Royal  Cedula  of 

1537. 

Colombia  concentrates  all  hvv  forces  in  support  of 
the  proposition  that  the  question  of  boundaries  with 
Costa  Rica  was  settled  by  the  Royal  cedula  of  Carlos 
V,  of  March  2,  1537,  which  placed  under  the  adminis- 
tration of  Tierra  Firme  (Castilla  del  Oro)  all  that  was 
left  of  Veragua  after  taking  nway  the  twenty-five 
leagues  for  the  dukedom. 

This  means  that  from  Colombia's  viewpoint  there  is 
no  question  of  boundaries  with  Costa  Rica ;  rather  is 
it  a  question  of  ''to  be  or  not  to  be,"  involving 
the  very  existence  of  the  la*^ter  as  a  nation, 
for  ColomV)ia  believes  that  Costa  Rica  had  no  legal 
existence  as  a  Spanish  province  and  that  her  territory 


57 

belonged  to  tliat  of  Tierra  Firme,  aa  did  all  of  Royal 
Veragua. 

Bearing  in  mind  that  Charles  V,  by  this  Royal  cedula, 
provided  that  Royal  Veragua  should  be  kept  under 
the  Government  of  Tierra  Finne  ivhilst  he  might  deem 
it  desirable,  it  will  be  easy  to  understand  its  ineffi- 
cacy  against  later  dispositions  of  the  Crown,  since  in 
issuing  them  it  was  not  infringed. 

But  if  there  is  any  desire  to  keep  it  alive,  forgetting 
its  conditional  character,  it  must  be  said  that  it  was 
repeatedly  abrogated,  whenever,  indeed,  the  Sovereign 
made  divisions  of  the  territory  of  Veragua  and  cre- 
ated different  governments  from  that  of  Tierra  Firme, 
and  also  whenever  he  confirmed  these  changes. 

Thus,  the  Royal  cedula  of  March  2,  1537,  was  abro- 
gated : 

1.  By  the  Royal  ce'dulas  of  November  29,  and  De- 
cember 16,  1540  (Doc.  Nos.  18  and  19),  giving  under 
capitulacion  to  Diego  Gutierrez  the  Province  of  Car- 
tago  and  appointing  him  the  Governor  thereof;  thai 
of  January  11,  1541  (Doc.  No.  20),  directing  all  the 
governors  of  the  Indies  to  respect  the  boundaries  of 
this  Government,  and  that  of  February  22,  1549  (Doe. 
No.  30),  giving  the  title  of  Governor  to  Perez  de 
Cabrera,  as  successor  to  Gutierrez. 

2.  By  the  Royal  cedula  of  December  13,  1559  (Doc. 
No.  34),  establishing  the  demarcation  which  was  giveu 
to  Ortiz  de  Elgueta;  that  of  February  23,  1560  (Doc. 
No.  37),  ordering  the  Audiencia  of  Guatemala  to  re- 
spect it;  that  of  February  5,  1561  (Doc.  No.  42),  re- 
voking the  commission  given  to  Ortiz  and  turning  it 
over  on  the  same  terras  to  Cavallon,  and  that  of  August 


58 

4,  of  tlie  same  year  (Doc.  No.  47),  confirming  the  ap- 
pointment of  Alcalde  mayor  given  by  the  Audiencia  to 
Cavallon,  whose  acts  of  settlement  and  those  of  his 
deputy  Ravago  were  approved. 

3.  By  the  Royal  cedula  of  July  18,  1560  (Doc.  No. 
39),  which  divided  Veragua  into  two  parts,  one  al- 
lotted to  Ortiz  de  Elgueta  and  the  other  to  Francisco 
Vazquez;  that  of  August  20th  of  the  same  year  (Doc. 
No.  40)  appointing  Francisco  Vazquez  Governor  and 
Captain-General  of  the  Province  of  Veragua ;  and  that 
of  August  9,  1561  (Doc.  No.  48)  denying  the  claims  of 
Figuerola,  by  right  of  his  office  of  Governor  of  Tierra 
Firme  and  by  order  of  the  Viceroy  of  Peru,  to  govern 
and  settle  the  Province  of  Veragua  and  that  of  Costa 
Rica,  because  these  were  under  the  respective  charges 
of  Alonso  Vazquez  and  Cavallon — a  most  important 
cedula,  therefore,  inasmuch  as  those  claims  were  the 
same  as  those  now  made  by  Colombia  and  Panama. 

4.  By  the  Royal  cedula  of  April  8,  1565  (Doc.  No. 
53),  appointing  Vazquez  de  Coronado  Governor  and 
Captain-General  of  Costa  Rica ;  and  by  that  of  August 
7,  following  (Doc.  No.  54),  describing  the  province 
under  his  command  in  the  same  manner  as  in  the  com- 
mission given  to  Ortiz  de  Elgueta. 

5.  By  the  Royal  cedula  of  December  1,  1573  (Doc. 
No.  62),  approving  tlie  capitidacion  of  Diego  de  Ar- 
tieda,  by  which  Teguzgalpa  was  segregated  from  the 
Province  of  Costa  Rica  and  the  boundaries  of  the 
latter  fixed  with  that  of  Veragua ;  that  of  February  18, 
1574  (Doc.  No.  63),  conferring  upon  him  the  title  of 
Governor  and  Captain-General  of  Costa  Rica,  with  that 
demarcation;  that  of  February  10,  1576  (Doc.  No.  65), 
creating  the  Province  of  Teguzgalpa;  that  of  August 


59 

30  of  the  saine  year  (Doc.  No.  66),  defininj]^  the  boim- 
daries  of  Costa  Rica  by  Bocas  dol  Drago ;  and  that  of 
June  3,  1580  (Doc.  No.  69),  approving  the  conduct  of 
Diego  de  Artieda  in  respect  to  the  settlements  he  made 
within  the  limits  of  his  jurisdiction. 

6.  By  the  Royal  cedula  of  December  29,  1593  ( Doc. 
No.  70),  granting  to  Don  Fernando  de  la  Cueva  the 
Government  of  Costa  Rica  as  it  had  been  held  by  Diego 
de  Artieda ;  the  appointment  of  the  later  governors  of 
Costa  Rica  and  the  disposition  concerning  the  adja- 
cent audiencias,  of  which  we  will  speak  later. 

There  can  not,  then,  be  the  slightest  doubt  that  the 
Province  of  Costa  Rica  was  legally  constituted  and 
marked  out  by  the  Royal  cedula  of  Philip  II,  of  1573, 
and  not  by  that  of  Carlos  V  of  1537,  which  was  in- 
effectual in  itself  and  the  subject  of  so  many  abroga- 
tions. 


60 


PART  SECOND 

The  Recopilacion  de  Indias  Respected  and  Con- 
firmed the  Existence  and  Demarcation  of  Costa 
Rica. 

SUMMARY. 

I.  The  Recopilacion  de  Indias  and  its  Abrogative 

Force. 

1.  The  Argument  of  Colombia. 

2.  General  Consideration  Concerning  the  Recopila- 

cion de  Indias  and  How  Its  Laws  Respect  and 
Confirm  the  Existence  and  Demarcation  of 
Costa  Rica. 

II.  The  Demarcation  of  the  Audiencias. 

1.  Importance  of  the  Audiencias  in  the  Government 

of  the  Indies. 

2.  History  of  the  Audiencias  of  Panama  and  Guate 

mala. 

3.  Comparison  Between  Laws  4  and  6  of  Title  15, 

Book  II,  Which  Treat  of  These  Audiencias. 

4.  Interpretation  of  Law  4 ;  What  Were  Castilla  del 

Oro,  Nata  and  the  Government  of  Veragua, 
Wliich  Were  Included  by  Tha"t  Law  in  the 
Audiencia  of  Panama. 

5.  Interpretation  of  Law  6;  The  Omission  of  the 

Name  of  Costa  Rica  of  no  Importance  in 
Treatin«r  of  the  Audiencia  of  Guatemala. 


(1 

in.  Costa  Rica  was  Expressly  Recogiiized  by  the  Re- 
copilacion  as  a  Province  of  the  Audiencia  of 
Guatemala  of  the  Viceroyalty  of  Mexico. 

1.  Law  1,  Title  2,  Book  V,  of  the  Recopilacion;  Its 

Importance. 

2.  This  Law  is  a  Resultant  of  the  History  of  Costa 

Rica,    Which    Always    Depended    Upon    the 
Audiencia  of  Guatemala : 

(a)  From  the  Creation  of  that  Audiencia  to  1563.; 

(b)  From  its  Reestablishment  (1568)  Down  to  the 

Promulgation  of  the  Recopilacion  (1680).' 

rV.  Interpretation  of  Law  9,  Title  1,  Book  V,  Declar- 
ing that  the  Whole  of  the  Province  of  Veragfua 
is  Under  the  Government  of  Tierra  Firme. 

1.  It  is  Not  Possible  to  Refer  to  the  Veragua  of 

1537,  as  Constituting  the  Whole  of  Veragua. 

2.  Nor  is  the  Hypothesis  Admissible  that  Veragua  is 

a  Major  and  Costa  Rica  a  Minor  Province. 

3.  Explanation  of  this  Law,  by  Making  it  Refer  to 

the  Province  Emanating  From  the  Dukedom. 

4.  Case  of  Supposed  Contradiction  of  This  Law 

With  Others. 

V.    Validity  of  the  Royal  Cedulas  Which  Are  Demar 
catory  According  to  the  Recopilacion. 

1.  Principles  Established  by  the  Recopilacion  in  Re- 
gard to  the  Validity  of  the  Royal  Cedulas 
Prior  and  Subsequent  Thereto. 


62' 

2.  Legality  of  Toiiitoiial   Division  and  tlio  Boun- 

daries of  Districts. 

3.  Special  Consideration  of  the  Capitulaciones: 

(a)  Juridical  Character  of  the  Capitulaciones; 

(b)  The  Capitulaciones  in  the  Light  of  Book  4  of 

the  Recopilacion; 

(c)  Capitulaciones  Originating  the  Provinces  of 

Veragua  and  Costa  Rica. 

4.  Unilateral  Acts  of  the  Crown  in  the  Unquestion- 

able Exercise  of  Sovereignty  and  Titles  of  the 
Governors ;  Final  Deductions. 


I. 


THE  RECOPILACICN  DE  INDIAS  AND  ITS  AB- 
ROGATIVE FORCE. 

1.    The  Argument  of  Colombia. 

It  seems  impossible,  after  what  we  have  said  with 
respect  to  the  inefficacy  of  the  Royal  cedula  of  March 
2,  1537,  and  its  numerous  abrogations  (especially  by 
that  of  1573),  that  Colombia  could  have  maintained  the 
subsistence  of  the  former  in  contravention  of  the  legal 
principle  that  "the  later  law  abrogates  the  prior  ones." 
But  she  did;  because,  relying  on  this  same  principle, 
she  gives  it  as  her  understanding  that  the  Recopilacion 
de  Indias  reestablished  the  cedula  of  1537  and  repealed 
all  the  dispositions  that  had  abrogated  it. 

Senor  Silvela  and  Monsieur  Poincare,  in  their  briefs 
in  defense  of  Colombia,  rely  upon  the  Royal  cedula  of 
Charles  11,  of  May  18,  1G80  (Doc.  No.  91),  which  sane- 


03 

tioned  the  Recopilacion,  and  which  was  published  at 
the  beginning  of  it,  when  they  make  the  assertion  that 
this  code — a  summary  of  all  the  Royal  dispositions 
which  constituted  the  system  of  government  for  tlie 
dominions  of  Spain  beyond  the  seas — abrogated  every- 
thing that  was  not  included  within  it,  because  the  King 
said,  ''it  is  our  will  that  from  now  forward  they  shall 
not  have  any  authority  whatever. ' ' 

Seuor  Maura  in  his  opinion  embodied  in  the  defense 
of  Colombia,  formulates  "the  synthetical  idea,"  of  the 
litigation,  sajdng  that  none  of  the  documents  prior  to 
the  Royal  cedula  of  May  18,  1680,  can  be  taken  into 
consideration,  except  under  the  condition  that  they  be 
submitted  to  the  obligatory  force  of  the  compiled  laws, 
which  in  every  case  must  prevail  over  contrary  dis- 
position; and  after  adding  that  this  principle  greatly 
simplifies  the  litigation,  he  goes  on  to  show  that  the 
Compilation  of  the  Laws  of  the  Indies  was  not  a  mere 
collection  but  a  real  body  of  laws  in  which  was  re- 
enacted  all  the  preceding  legislation,  with  the  repeal 
thereby  of  whatever  was  not  included,  as  was  done  in 
the  "Fuero  Juzgo,"  (ancient  laws  by  the  Gothic 
Kings),  the  "Fuero  Vie  jo,"  (ancient  laws),  the  "  Siete 
Partidas"  (the  laws  of  Castile  compiled  by  King  Al- 
fonso the  Tenth)  and  the  statutory  compilations  of 
Aragon,  Catalonia,  Navarre  and  Majorca. 

Starting  from  this  basis,  counsel  for  Colombia  deny 
the  existence  of  the  Province  of  Costa  Rica,  on  the 
ground  that  they  do  not  find  it  mentioned  in  the  laws 
fixing  demarcations  of  audiencias;  they  merge  it  in 
the  Province  of  Veragua,  and  put  the  latter  back  under 
the  Royal  cedula  of  1537  because  they  find  the  latter 
cited  in  one  of  the  laws,  and,  finally,  take  from  the 


64 

Royal  cedulas  that  fix  lioundaries  all  of  their  authority, 
because  they  do  not  lind  them  converted  into  laws. 

2.  General  Consideration  Concerning  the  Recopila- 
cion  de  Tndias  and  How  Its  Laws  Respect  and  Con- 
firm the  Existence  and  Demarcation  of  Costa  Rica. 

The  Recopilacidn  of  the  Laws  of  the  Indies  was  not, 
in  fact,  a  collection  ( repertorio  or  repertoire)  compiled 
with  the  single  purpose  of  facilitating  a  knowledge  of 
the  old  dispositions ;  neither  was  it  a  code  in  the  scien- 
tific acceptation  of  that  word;  that  is  a  coordinate 
grouping  of  a  particular  system  of  laws  under  onj 
common  principle  of  unity,  formulated  once  for  all  and 
w^ithout  continuous  references  to  ancient  laws  further 
than  may  be  inspired  thereby. 

The  Recopilacion  de  Indias  was,  like  all  compila- 
tions, a  collection  of  the  law^s  of  various  periods.  The 
texts  of  these  laws  were  reproduced,  in  whole,  or  part, 
or  in  modified  form,  the  chronological  sequence  of  some 
having  been  changed  for  greater  convenience,  and  the 
citation  of  its  origin  or  source  having  been  inserted 
at  the  head,  or  on  the  margin,  of  each ;  and  it  is  clear 
that  it  may  be  compared,  in  this  respect,  with  othei 
coinpilations  which  were  made  in  Spain,  wdth  the  ex- 
ception of  K^icfc  Partidas,  which  possessed  the  char- 
acteristics of  a  code. 

It  is  certain  that  the  Recopilacion  de  Indias  did  have 
abrogative  force;  not  absolute,  however,  as  the  coun- 
sel for  Colombia  assert,  but  limited,  as  was  clearly 
expressed  in  said  Royal  cedula  of  Carlos  II,  of  May  18, 
1680,  the  latter  part  of  which  counsel  persistently 
omit.  This  Royal  cedula,  after  directing  that  the  Laws 
of  tlic  Recopilacion  shall  control,  specifically  states, 


65 


it  *  *  * 


leaving  in  their  force  and  vigor  the  Cedu- 
las  and  Ordinances  given  to  our  Royal  Andicn- 
cias,  in  so  far  as  they  are  not  contraiy  to  the 
Laws  herein. ' ' 
And    in    various    texts    of    the    Recopilacion    tlie 
subsistence  of  prior  dispositions  is  declared,  always, 
of  course,  under  the  condition  that  they  are  not  con- 
trary to  the  said  laws. 

Therefore,  the  Laws  of  the  Recopilacion  respect  and 
confirai  the  existence  of  the  Province  of  Costa  Rica, 
since,  far  from  suppressing  it,  they  expressly  recog- 
nized it ;  they  respect  and  confirm  also  the  boundaries 
which  it  then  had,  as  they  did  not  modify  the  demar 
cation  of  audiencias,  and  the  law  concerning  the  boun- 
daries of  governments  declares  in  force  the  existing 
legal  situation. 

In  the  development  of  this  thesis,  we  will  take  up  all 
the  questions  which  have  been  the  subject  of  contro- 
versy and  relate  to  the  Recopilacion  de  Indias,  ex- 
pounding them  in  the  order  which  we  consider  most 
desirable  for  clearness  in  the  demonstration. 

n. 

THE  DEMARCATION  OF  THE  AUDIENCIAS. 

1.    Importance  of  the  Audiencias  in  the  Government 
of  the  Indies. 

Charles  V  divided  tlie  government  of  the  American 
territories  into  two  great  viceroyalties,  that  of  New 
Spain  (Mexico)  and  that  of  Peru;  he  subdivided  the 
former  into  the  four  audiencias,  of  Santo  Domingo, 
Mexico,  Guatemala  and  Guadalajara,  which  he  cre- 
ated; and  the  second  into  the  three  audiencias  of  Pan 


66 

ama,  Lima  and  Santa  Fe,  which  he  also  created.  The 
number  of  the  aiidiencias  in  Peru  was  increased  by 
Philip  II,  with  tlie  addition  of  those  of  Charcas  and 
Quito,  by  Philip  111  with  that  of  Chile,  and,  by  Philip 
IV',  with  that  of  Buenos  Aires. 

This  division  of  territory  into  audiencias  was  not 
merely  judicial,  but  of  a  .s^eneral  character  and  admir- 
ably adapted.  Each  audiencia  had  under  its  charge, 
besides  the  administration  of  justice,  the  entire  civil 
and  even  military  government  of  the  provinces  in- 
cluded in  its  district. 

Law  1,  title  15,  book  II  (Doc.  No.  105),  of  the  Re- 
copilacion,  states  that  in  all  the  territory  that  had  been 
discoA'ored  u))  to  that  time  in  the  Kingdom  and  Seign- 
ories  of  the  Indies,  there  were  founded  twelve  audi- 
encias and  Royal  chancelleries  (the  eleven  mentioned 
and  that  of  Manila),  "*  *  *  in  order  that  our  vas- 
sals may  have  those  who  may  govern  and  rule  them 
in  peace  and  witli  justice;  and  whereas  their  districts 
have  been  divided  into  Government,  Corregimientos 
and  Alcaldias  may  ores  *  *  *  which  are  subordi- 
nate to  the  Royal  Audiencia    *     *     *." 

And  in  this  same  title  the  boundaries  of  the  district 
of  each  one  of  them  are  indicated. 

The  fact,  therefore,  that  a  province  belonged  to  ^ 
particular  audiencia,  not  only  signified  that  it  de- 
pended upon  it  judicially,  but  also  for  civil  government. 

2.    History  of  the  Audiencias  of  Panama  and  Guate- 
mala. 

Colombia,  starting  out  with  the  theory  that  she  is 
the  heir  of  the  whole  of  the  territory  which  was  under 
the  Audiencia  of  Panama  (also  called  Tierra  Firme) 


«7 

makes  every  effort  to  prove  that  the  Recopilacion,  in 
including  all  of  the  Province  of  Veragua  in  the  Gov- 
ernment of  Tierra  Firme — according  to  tlie  Royal 
cedula  of  151)7 — also  included  the  territory  of  Costa 
Rica  by  reason  of  its  being  coniprdiended  in  the  Ver- 
agua of  that  epoch.  Leaving  till  later  the  interpreta- 
tion of  the  law  which  especially  refers  to  the  Province 
of  Veragua,  and  which,  as  we  shall  see,  is  the  provinco 
that  arose  out  of  the  dukedom,  let  us  now  examine 
the  laws  that  treat  of  the  demarcation  of  the  Audi- 
encias  of  Panama  and  Guatemala.  But  l)efore  doing 
so,  the  history  of  those  two  audiencias  should  be  briefly 
related  because  it  is  quite  complicated,  and  also  be- 
cause it  will  tend  to  dissipate  another  of  the  equivoques 
of  which  Colombia  has  made  use  in  her  quibbling;  to 
wit,  that  the  Audiencia  of  Panama  was  a  very  different 
thing,  according  to  whether  it  is  taken  as  existing 
alone  in  that  part  of  America,  or  in  co-existence  with 
that  of  Guatemala. 

The  Audiencia  of  Santo  Domingo  of  the  Island  of 
Espafiola  was  founded  in  ]52f),  the  first  of  those  estab- 
lishe  i  in  the  indies,  and  it  liad  under  its  jurisdiction, 
besides,  the  islands  of  the  Sea  of  the  Antilles,  the  terri- 
tories on  the  coast  discovered  by  Columbus  during  his 
last  voyage,  to  which  were  given  the  name  of  Veragua, 
and  the  rest  which  were  discovered  on  the  Isthmus  and 
in  southern  America. 

But  at  the  same  time  that  the  concjiiest  and  govern- 
ment of  Veragua  was  being  organized  under  Felipe 
Gutierrez  and  the  Dukedom  of  Veragua  created — and 
perhaps  with  the  latter  creation  in  view — the  establish 
ment  of  another  audiencia  was  under  way ;  to  this  was 
given  the  name  of  Panama  in  Tierra  Firme.  We  infer 
this  from  Law  4,  title  15,  book  II,  of  the  Recopilacion 


(Doc.  lOG),  referring  to  this  audiencia,  which  cites  as 
the  origiu  thereof  the  Royal  cedula  of  February  30, 
1535,  issued  two  months  after  the  approval  of  the 
capitulacion  with  Felipe  Gutierrez,  and  that  of  March 
2,  1537;  that  is,  when  this  capitulacion  was  revoked, 
the  existence  of  tlie  dukedom  (created  in  the  same 
year)  was  ratified,  and  it  was  declared  that  the  rest 
of  Veragua  would  be  understood  to  be  under  the  gov- 
ernment of  the  Province  of  Tierra  Firme,  called  Cas 
tilla  del  Oro,  until  the  Crown  should  otherwise  provide. 
The  Audiencia  of  Panama,  which  was  constituted 
by  the  Koyal  cedula  and  ordinances  of  February  26, 
153S  (Doc.  No.  14),  comprised  within  its  district  "the 
Province  of  Tierra  Firme,  called  Castilla  del  Oro,  and 
Provinces  of  the  Rio  de  la  Plata  and  the  Strait  of 
Magellan,  and  New  Toledo  and  New  Castile,  called 
Peru,  and  liiver  San  Juan,  Nicaragua  and  Cartagena 
and  Dukedom  of  Zoroharo,  and  whatever  islands  and 
provinces  there  might  be  both  on  the  South  Sea  as 
well  as  on  the  North  Sea." 

In  view  of  the  impossibility  of  governing  such  an 
enormous  territory  (Central  and  South  America),  and 
after  the  death  of  Pizarro  in  Peru  and  of  Alvarado  in 
New  Spain,  Charles  V  divided  it  in  his  Ordinances  of 
Barcelona,  November  20,  1542  (Doc.  No.  26),  called 
the  "New  Laws"  and  also  "Laws  of  Reformation  of 
the  Indies, ' '  by  suppressing  the  Audiencia  of  Panama, 
creating  the  Viceroyalty  of  Peru  with  an  audiencia  in 
Lima  and  directing  another  audiencia  to  be  estab- 
lished "within  the  confines  of  Guatemala  and  Nicar 
agua  *  *  *"  which  "shall  have  under  its  charge 
tho  govcrnmoiit  of  said  provinces  and  adjacent  re- 
gions. '  * 

By  the  Royal  cedula  of  September  13,  1543   (Doc. 


69 

No.  27),  this  latter  audiencia  was  in  fact  created,  and 
denominated  the  Audiencia  of  the  Confines  (of  the 
confines,  or  borders,  of  Guatemahi),  comprising  within 
its  district  the  provinces  of  Guatemahi,  Nicaragua, 
Chiapa,  Yocatan,  Cozumel,  Higueras,  Cape  Honduras 
<<*  »  *  and  all  other  provinces  and  islands  that  ther«^ 
may  be  on  the  coast  and  in  the  region  of  the  said 
provinces  as  far  as  the  Province  of  Tierra  Finne 
called  Castilla  del  Oro,  inclusive";  that  is  to  say,  the 
whole  of  Central  America,  including  Veragua,  although 
it  was  not  mentioned.  This  audiencia  was  first  in 
stalled  in  the  city  of  Gracias  a  Dios  (1544)  and  after- 
wards transferred  to  that  of  Santiago  do  los  Cabal- 
leros  de  Guatemala  (1550),  and  from  which  it  was 
given  the  latter  name. 

But  in  moving  from  one  capital  to  another,  its 
district  was  reduced ;  Castilla  del  Oro  was  lost  to  it  in 
consequence  of  the  reform  made  in  the  Audiencia  of 
Lima  whereby  a  part  of  the  latter  was  taken  away  to 
form  the  Audiencia  of  Santa  Fe  de  Bogota  in  the  New 
Kingdom  of  Granada,  in  obedience  to  the  Koyal  cedula 
of  June  17,  1549.  And  there  is  not  the  slightest  doubt 
but  that  Castilla  del  Oro  was  separated  from  the 
Audiencia  of  the  Confines,  or  Guatemala,  and  there- 
fore from  Veragua,  for  the  Royal  cedula  of  Charles  V 
of  May  2,  1550  (Doc.  No.  13.3),  which  is  Law  7,  title  1, 
book  V,  of  the  Recopilacion  de  Indias,  specifically  says  : 

*'We  command  that  the  Province  of  Tierra 
Firme,  called  Castilla  del  Oro,  shall  belong  to 
the  Provinces  of  Peru  and  not  to  those  of  New 
Spain  (Mexico)." 

Abuses  committed  by  the  x\udiencia  of  the  Confines, 
or  Guatemala,  and  the  convenience  of  better  service, 


70 

led  to  its  traiisforiiiation  into  the  Audiencia  of  Pan- 
ama, upon  the  territorial  basis  of  that  of  Guatemala, 
with  important  modifications,  however,  by  the  Royal 
cedula  of  Philip  IT,  of  September  8,  1563  (Doc.  No. 
50) ;  and  its  headquarters  were  transferred  to  the  city 
of  Panama.  The  audiencia  lost,  according  to  that 
cedula,  the  Province  of  Guatemala  and  other  terri- 
tories in  the  north,  and  was  given  for  a  boundary  the 
Gulf  of  Ponseca,  exclusive,  and  the  Ulua  river,  and  it 
gained  the  Province  of  Castilla  del  Oro  as  far  as  the 
Darien  river,  exclusive. 

The  Viceroy  and  the  Audiencia  of  New  Spain  (Mex- 
ico) stated  to  the  King,  on  February  26,  1564,  the  de 
fects  in  this  reform,  and  begged  that  the  Audiencia  of 
Guatemala  might  be  re-established;  this  petition  was 
granted  in  January,  1567,  and  that  audiencia  replaced 
in  the  condition  it  was  prior  to  1563.  The  Royal  cedula 
of  June  28, 1568  (Doc.  No.  57),  expressly  designated  as 
integral  parts  thereof,  the  Provinces  of  Guatemala, 
Chiapa,  Higueras,  Verapaz,  Cape  Honduras,  and  Nic- 
aragua "*  *  *  and  whatever  other  islands  and 
provinces  there  may  be  on  the  coast  and  in  the  region 
of  the  said  provinces,  as  far  as  the  Province  of  Nicar- 
agua." This  audiencia  was  again  installed  in  the  city 
of  vSantiago  de  los  Caballeros  on  March  3,  1570. 

The  Audiencia  of  Panama,  however,  did  not  dis- 
appear; there  remained  within  it,  in  1570,  Tierra  Firme 
and  the  Province  of  Veragua  which  had  been  consti- 
tuted in  1560,  but  not  that  of  Costa  Rica  which  was 
contiguous  with  the  Province  of  Nicaragua. 

The  Audiencia  of  Guatemala  continued  thereafter 
as  a  dependency  of  the  Viceroyalty  of  Mexico,  whilst 
that  of  Panama,  after  the  re-establishment  of  the  latter, 


belonged  to  the  Viceroyalty  of  Peru,  and  they  were, 
respectively,  the  extremes  and  frontiers  of  the  two 
viceroyalties. 

3.    Comparison  Between  Laws  4  and  6,  of  Title  15, 
Book  II,  Which  Treat  of  These  Audiencias. 

Law  4,  title  15,  book  II  (Doc.  No.  106),  of  the  Re 
copilaciofi  de  Indias  ( according?  to  the  Royal  cedulas 
which  it  cites  with  "others  as  complements  thereof,  and 
to  what  was  provided  by  Philip  IV  in  the  same  Re- 
copilaeion),  designates  in  the  following  manner  the 
district  of  the  Andiencia  of  Panama: 

"It  shall  have  for  district  the  Province  of 
Castilla  del  Oro,  as  far  as  Puertobelo  and  its 
territory;  the  city  of  Nata  and  its  territory, 
the  Government  of  Veragua;  and,  upon  the 
South  Sea,  toward  Peru,  as  far  as  the  Port 
Buenaventura,  exclusive;  and  from  Puertobelo 
toward  Cartagena,  to  the  River  Darien,  exclu 
sive,  with  the  Gulf  of  Uraba  and  Tierra  Firme 


And  in  fixing  the  boundaries  of  this  district,  it  says : 

li*  *  *  ])oi.(|ering  on  the  East  and  South 
upon  the  Audiencias  of  the  New  Kingdom  of 
Granada  and  San  Francisco  de  Quito;  on  tlu 
West  with  that  of  Santiago  de  Guatemala;  and 
upon  the  North  and  South,  upon  the  two  seas 
of  the  North  and  South." 

Law  ()  of  the  same  title  and  book  (Doc.  No.  107), 
of  the  Uecopilacion  (according  to  the  cedulas  men- 
tioned, which  it  cites  with  other  complementary 
cedulas,  and  to  what  was  provided  by  Philip  IV),  es- 


n 

tablisLefl  the  district  of  the  Aiidieucia  of  Guatemala, 
as  follows : 

"It  shall  have  for  its  district  the  said  Prov- 
ince of  Guatemala,  and  those  of  Nicaragua, 
Chiapa,  Higneras,  Cape  Honduras,  Verapaz  and 
Soconusco,  with  the  islands  of  the  coast." 

And  it  adds : 

"*  *  *  bordering  on  the  East  upon  ih'i 
Audiencia  of  Tierra  Firme,  on  the  West,  upo  t 
that  of  New  Galicia,  and  upon  the  latter  and 
the  North  Sea,  on  the  North,  and,  on  the  South, 
upon  the  South  Sea." 

The  first  thing  that  is  noted  in  comparing  these  two 
laws  is  that  no  geographical  dividing  line  is  desig- 
nated between  the  Audiencia  of  Guatemala  and  that 
of  Panama.  They  only  state  that  one  begins  where 
the  other  ends;  therefore  they  do  not  settle  the  ques- 
tion of  boundaries  between  the  Provinces  of  Costa 
Rica  and  Veragua. 

But  from  the  enumeration  made  by  these  two  laws 
of  the  provinces  which  are  comprised  in  each  of  these 
audiencias  counsel  for  Colombia  deduce  that  the  ter- 
ritory of  Costa  Rica  was  included  in  the  Audiencia 
of  Panama,  because  this  province  does  not  appear  to 
be  mentioned  by  Law  6  as  among  those  of  the  Audi- 
encia of  Guatemala,  whereas  Law  4  expressly  includes 
the  Government  of  Veragua  in  that  of  Panama. 

Let  us  see  in  the  first  place  how  far  Law  4  goes 
with  regard  to  the  explicit  inclusion,  that  being  the 
aflBmiative  part  of  the  argument;  we  shall  see  later 
what  may  be  the  effect  of  the  omission  of  the  name  in 
Law  6. 


73 

4.  Interpretation  of  Law  4;  A^^at  Were  Castilla  del 
Oro,  Nata  and  the  Government  of  Veragua,  Which 
Were  Included  by  That  Law  in  the  Audiencia  of 
Panama. 

Law  4  begins  the  description  of  the  Audiencia  of 
Panama  witli  the  Province  of  Castilla  dd  Oro,  from 
Portobelo  as  far  as  the  Darien  river,  exclusive.  This 
province  which,  in  some  demarcations,  appears  as  the 
extreme  Umit  of  Royal  Veragua,  was  included  in  the 
Audiencia  of  the  Confines,  or  Guatemala,  on  the  ere 
ation  of  the  latter  in  1543;  but  the  Royal  cedula  of 
May  2,  1550,  directed  that  it  should  belong  to  the  Vice- 
royalty  of  Peru  and  not  to  that  of  New  Spain  (Mexico). 
It  returned  to  the  Audiencia  of  the  Confines  when  it 
was  transferred  to  Panama,  in  1563,  and  remained  in 
that  of  Panama  when  the  latter  was  dismembered  by 
the  re-establishment  of  the  Audiencia  of  Guatemala, 
in  1568;  and  in  the  Audiencia  of  Panama  it  was  re- 
tained by  the  Recopilacion  de  Indias.  These  fluctua- 
tions reveal  the  fact  that  it  was  an  intermediate  prov- 
ince between  the  Viceroyalties  of  Mexico  and  Peru, 
in  which  the  jurisdiction  of  the  latter  prevailed. 

In  the  direction  of  New  Spain,  Law  4,  locates  th-i 
city  of  Natd  and  its  territory  after  Castilla  del  Oro, 
and  lastly  the  Government  of  Veragua.  Counsel  for 
Colombia,  continuing  to  juggle  with  the  equivoque  in- 
volving this  name,  understand  that  this  Government 
of  Veragua  was  the  Royal  Veragua,  in  which  Costa 
Rica  was  included,  and  not  the  Ducal  Veragna,  for  the 
latter  has  been  added  to  tlie  city  and  territory  of  Natd. 

To  dissipate  this  erroneous  interpretation,  it  is 
enough  to  refer  to  what  we  have  said  in  Part  First, 
concerning  the  transformation  of  the  Dukedom  into 


74 

the  Province  of  \\Maiina.  When  the  dukedoni  was  sup- 
pressed it  was  not  added  to  Natd,  but  tlie  residents  of 
that  city  were  authorized  to  go  into  that  country  for 
conquest  and  settlement;  and  it  was  by  virtue  of  that 
authority  that  Francisco  Vazquez  went  tliore  with  his 
men;  he  it  was  wliom  the  Crown  appointed,  soon  after- 
wards, Governor  of  the  province  tliat  was  then  left 
definitivelj''  constituted  (1560)  under  the  name  of  Ver- 
agiia  (Ducal  Veragua) ;  and  this  is  the  Government  to 
which  Law  4  alludes,  after  speaking  of  the  city  of  Nata 
and  its  territory. 

Natd,  from  its  origin,  in  1520,  always  belonged  to 
the  jurisdiction  of  Panama  (Province  and  Audiencia), 
and  was  administered  by  an  Alcalde  mayor  appointed 
by  the  Governor  or  President  of  the  Audiencia  of 
Tierra  Pirme.  The  Province  of  Veragua,  which  was 
forTiied  from  the  dukedom,  was  raised  to  the  status 
of  a  government  and  captaincy-general,  which  office 
was  provided  for  by  the  King  himself,  it  having  by 
reason  of  its  class  and  salary  a  higher  rank  than  that 
of  alcalde.  Far  from  the  Province  of  Veragua  being 
united,  or  subordinated  to  the  city  of  Nata,  the  resi- 
dents of  the  latter  were  the  ones  who,  tired  of  their 
alcaldes  mayores,  petitioned  for  the  aggregation  of 
their  city  to  that  province;  but  without  success. 

It  cannot,  therefore,  be  successfully  maintained  that 
the  Dukedom  of  Veragua  was  comprised  in  Nata,  in 
order,  later,  to  include  Costa  Rica  in  the  **  Govern- 
ment of  Veragua/'  The  farthest  counsel  for  Colombia 
can  go  is  to  consider  the  two  Veraguas — ducal  and 
royal — under  this  denomination.  But  to  this  is  op 
posed  the  history  of  the  formation  of  the  two  provinces 
of  V^eragua  and  Costa  Rica,  the  fact  of  their  existence 
at  the  time  the  Recopilacion  was  made,  and  the  pro- 


75 

visions  of  that  Compilation,  in  its  Law  1,  title  2,  book 
V  (Doc.  No.  136),  entitled,  "rfe  provision  de  oficios" 
(provisions  for  appointments  to  office),  under  wliicli 
there  was  reserved  to  the  King  the  right  to  fill  the 
office  of  Governor  and  Captain-General  of  the  Province 
of  Vcragua  (with  a  salaiy  of  one  thousand  pesos), 
which  is  "in  our  Royal  Audiencia  of  Panama,"  of  Peku, 
and  that  of  the  Governor  and  Captain-General  of  the 
Province  of  Costa  Rica  (with  a  salary  of  two  thousand 
ducats),  which  is  '4n  our  Royal  Audiencia  of  Guate- 
mala," of  New  Spain, 

In  deference  to  this  law,  promulgated  in  the  time  of 
Charles  II,  when  the  Recopilacion  was  compiled,  it  is 
not  possible  to  interpret  the  "Government  of  Ver- 
agua ' '  by  merging  therein  the  Province  of  Costa  Rica. 

5.  Interpretation  of  Law  6.  The  Omission  of  the 
Name  of  Costa  Rica  of  no  Importance  in  Treating 
of  the  Audiencia  of  Guatemala. 

It  is  clearly  established  from  what  we  have  just  said, 
that  the  Government  of  Costa  Rica  was  included  in 
the  Audiencia  of  Guatemala,  since  it  was  so  expressed 
in  the  Recopilacion  itself,  and  it  was  a  thing  distinct 
from  the  Government  of  Veragua,  with  which  the  de- 
marcation of  the  Audiencia  of  Panama  ends,  as  stated 
by  Law  4. 

The  description  made  by  Law  6  of  the  Audiencia 
of  Guatemala  is  less  detailed,  doubtless  because  those 
who  prepared  the  Recopilacion  did  not  consider  it 
necessary,  after  having  specifically  provided,  in  Law  4, 
that  the  Audiencia  of  Panama  terminated  with  the 
Government  of  Veragua,  deeming  it  sufficient  to  affirm 


76 

that  that  of  Guatemala  bordered  with  it  on  the  east 
The  omission  of  the  name  of  Costa  Rica  is  explained 
also  by  the  fact  that  instead  of  writing  an  entirely 
new  law,  they  took  for  a  text  that  of  the  Royal  cedula 
of  June  28,  ]5(i8,  which,  with  some  corrections,  they  in- 
serted in  the  Eecopilacion.  And  as  the  main  object  of 
this  Royal  cedula  was  the  advantage  of  leaving  well 
determined  the  northern  part,  which,  upon  the  re-es- 
tablishment of  the  Audiencia  of  Guatemala,  was  united 
to  that  audiencia,  no  description  was  made  of  the  lower 
part,  which  had  always  belonged  to  the  Audiencia  of 
the  Confines,  for  it  was  not  the  subject  of  doubt. 

But,  although  Costa  Rica  was  not  named  in  said 
Royal  cedula,  it  was  compreliended  within  the  clause, 
i(*  *  *  ^jj^  whatever  other  islands  and  provinces 
there  may  be  on  the  coast  and  in  the  region  of  the 
said  provinces,"  among  which  was  mentioned  that  of 
Nicaragua.  In  ordering  the  promulgation  of  the  '  *  New 
Laws"  of  1542,  which  created  the  Audiencia  of  th*; 
Confines  (of  Guatemala  and  Nicaragua),  it  was  pro- 
vided that  it  should  have  under  its  charge  "*  *  * 
the  Government  of  the  said  province  and  adjacent  re- 
gions," a  phrase  similar  to  that  employed  in  the  re- 
establishment  of  that  Audiencia,  in  1568,  under  the 
denomination  of  "Guatemala." 

The  Audiencia  of  Guatemala  having  been  re-estab- 
lished, that  of  Panama  was  advised,  by  Royal  cedula 
of  August  12,  1571  (Doc.  No.  59),  that  it  must  no 
longer  concern  itself  with  the  affairs  of  the  former, 
while  the  Royal  cedula  of  July  17,  1572  (Doc.  No.  61), 
bestowed  upon  the  Audiencia  of  Guatemala  jurisdic- 
tion over  the  affairs  of  the  Provinces  of  Nicaragua  and 
Costa  Rica. 


77 

The  aflfairs  of  Costa  Rica  continued  to  be  depend- 
ent upon  tlie  Audiencia  of  Guatemala  when  the  Re- 
copilacion  de  Indias  was  published  in  1680 ;  and  coun- 
sel for  Colombia  resort  to  the  argument  that  even  if 
Costa  Rica  had  existed  legally  as  a  province,  the  omis- 
sion of  its  name  in  the  laws  of  demarcation  of  the 
contiguous  audiencias  signified  its  suppression,  and 
that  the  Recopilacion  de  Indias  thus  abrogated  the 
prior  Royal  cedulas  relating  to  it. 

But  although  Law  6  does  not  mention  the  Province 
of  Costa  Rica,  it  includes  it  between  Nicaragua  and  the 
divisionary  line  of  the  district  of  the  Audiencia  of 
Guatemala,  unless  it  l>e  assumed,  as  Colombia  does 
assume,  that  the  Government  of  Veragua,  of  the  Audi- 
encia of  Panama,  reached  as  far  as  Nicaragua.  And 
having  proved  that  that  Government  did  not  include 
that  of  Costa  Rica,  which  was  recognized  by  the  Re- 
copilacion as  a  province  belonging  to  the  Audiencia  of 
Guatemala,  it  must  be  agreed  that  Costa  Rica  was  not 
suppressed  by  Law  6,  although  it  was  not  expressly 
mentioned  therein. 

To  the  foregoing  we  must  add  that  the  laws  of  de- 
marcation of  audiencias  are  not  laws  of  creation  and 
suppression  of  component  provinces  of  their  respective 
districts,  but  of  differentiation  of  one  from  another, 
for  the  purpose  of  establishing  the  external  boundaries 
of  the  territorial  jurisdictions  of  those  audiencias. 

Wiiatever  subtleties  counsel  for  Colombia  may  ap 
peal  to  in  order  to  show  that  the  Province  of  Costa 
Rica  canic  to  an  end  with  the  publication  of  the  Recop- 
ilacion de.  Indias,  their  purpose  cannot  succeed  in  tlic 
face  of  the  decisive  reason  that  the  latter  expressly 
recognizes  it  and  its  author  provided  for  its  needs  as 
such  province. 


7R 

in. 


COSTA  RICA  WAS  EXPRESSLY  RECOGNIZED  BY 
THE  RECOPILACIOiT  AS  A  PROVINCE  OF  THE 
AUDIENCIA  OF  GUATEMALA  OF  THE  VICE- 
ROYALTY  OF  MEXICO. 

1.    Law  1,  Title  2,  Book  V,  of  the  Recopilacion;  Its 
Importance. 

The  Kings  of  Spain  having  reserved  to  themselves 
the  power  to  fill  directly  the  offices  of  viceroys,  cap- 
tains-general, presidents  and  judges  of  audiencias,  and 
the  most  important  governments,  corregimientos  and 
alcaldias  may  ores,  the  Law  1,  title  2,  book  V,  of  the 
Recopilacion  enumerated  all  of  these  offices  with  their 
annual  compensations,  and  submitted  them,  classified 
under  audiencias,  for  each  of  the  two  viceroyalties. 

The  enumeration  of  the  offices  under  the  provision 
of  the  Crown,  in  the  Viceroyalty  of  Peru,  begins  with 
the  Audiencia  of  Panama,  in  which  district  it  says: 

<'*  *  *  We  have  to  provide  the  post  of 
Governor  and  Captain-General  of  the  Province 
of  Tierra  Firme  and  President  of  the  Royal 
Audiencia  for  eight  years,  which  has  a  salary 
of  four  thousand  five  hundred  ducats;  and  thac 
of  Governor  and  Captain-General  of  the  Prov 
ince  of  Veragua,  with  one  thousand  pesos  ensay- 
ados  (assayed  dollars) ;  the  Government  of  the 
Island  of  Santa  Catalina,  with  two  thousand 
pesos ;  and  the  Alcaldia  mayor  of  San  Felipe  de 
Portobelo,  with  six  hundred  ducats," 

It  then  proceeds  to  speak  of  the  other  audiencias  of 
this  Viceroyalty,  that  is  to  say,  those  of  Lima,  Santa 
Fe,  Charcas,  Quito,  Chile  and  Buenos  Ayres. 


79 

Under  the  denomination  of  New  Spain,  the  law 
enumerates  the  offices  imder  the  provision  of  the  King 
in  the  Audiencias  of  Santo  Domingo,  Mexico,  Guada- 
lajara and  Guatemala,  in  respect  to  which  it  says: 

''In  the  district  of  our  Royal  Audiencia  of 
Guatemala,  the  post  of  Governor  and  Captain- 
General  and  President  of  the  Audiencia,  for 
eight  years,  with  a  salary  of  five  thousand 
ducats;  that  of  Governor  and  Captain-General 
of  Valladolid  de  Comayagua,  with  two  thousand 
pesos  de  minas  (mined  dollars) ;  that  of  Gov- 
ernor AND  Captain-General  of  the  Pfm)vince 
of  COSTA  RICA,  with  two  thousand  ducats; 
that  of  Governor  and  Captain-General  of  the 
Province  of  Honduras,  with  one  thousand  pesos 
de  minas;  that  of  Governor  of  Nicaragua,  with 
one  thousand  ducats ;  that  of  Soconusco,  with  six 
hundred  pesos  de  minas,  and  the  Alcaldias 
may  ores  of  Verapaz,  Chiapa,  Nicoya,  etc." 

This  law  offers  an  almost  complete  exposition  of  the 
organization  of  the  Spanish  Colonial  Government,  by 
viceroyalties,  audiencias,  provincial  governments  and 
alcaldias  may  ores ;  it  is  at  once  a  law  of  territorial  di- 
vision and  one  making  appropriations. 

As  it  states  itself,  the  law  was  enacted  by  "Don 
Carlos  II  and  the  governing  Queen,  in  this  Recopila- 
cion,"  in  consultation  with  the  Council  and  upon  re- 
I)orts  from  the  Secretaryships  of  Peru  and  New  Spain. 
It  is,  therefore,  of  great  importance  as  being  a  faithful 
expression  of  the  reality  of  the  administrative  division 
at  the  very  date  on  which  the  Recopilacion  was  pub- 
lished (1680)  and  as  affording  a  solution  for  the  doubts 
that  might  arise  from  prior  enactments  in  the  inter 
pretation  of  other  laws  of  this  Code. 


2.  This  Law  Is  a  Resultant  of  the  History  of  Costa 
Eica,  Which  Always  Depended  Upon  the  Audiencia 
of  Guatemala. 

The  Law  I,  of  title  2,  book  V,  in  specifically  declar- 
ing that  the  Government  and  Captaincy-General  of 
the  Province  of  Costa  Rica  belonged  to  tlie  Audiencia 
of  Guatemala  and  Viceroyalty  of  Mexico,  not  only  rec- 
ognized the  existence  of  that  province,  but  it  brought 
to  the  Eecopilacion  the  result  of  its  history,  confirmmg 
and  ratifying  such  jurisdictional  dependency. 

{o)  From  the  Creation  of  That  Audiencia  to  1563. 

The  importance  that  was  given  to  primitive  Veragua 
by  the  capitulacion  of  Felipe  Gutierrez  and  the  forma- 
tion of  the  dukedom  (1534),  determined  the  creation,  in 
1535,  of  the  Audiencia  of  Panama,  or  Tierra  Firme, 
which  was  organized,  in  1538,  by  segregating  those 
territories  from  the  Government  of  the  Island  of  Es- 
panola  and  all  others  discovered  toward  the  south,  to 
which  it  was  impossible  for  said  goveniment  to  give 
further  attention.  The  Audiencia  of  Panama  was  then 
the  only  one  in  existence  for  the  government  of  the 
American  continent,  from  the  line  marking  the  end  of 
M'^xico's  territory  down  to  the  Strait  of  Magellan. 

By  this  Veragua  depended  at  first  upon  the  Govern- 
ment of  Tierra  Finiie,  as  the  Royal  cedula  of  1537 
declared. 

But  when  that  vast  government  was  divided  by  the 
so-called  "New  Laws"  of  1542,  by  the  creation  of  the 
Viceroyalty  of  Peru  and  the  Audiencia  of  the  Confines 
(which  was  established  in  1543  and  afterwards  called 


81 

the  Audiencia  of  Guatemala),  Costa  Rica  formed  a 
part  of  that  audiencia,  never  to  be  separated  therefrom 
throut^Ji  all  the  vicissitudes  this  audiencia  underwent 
while  dependent  upon  the  Viceroyalty  of  Mexico; 
whereas  Tierra  Firme  was  made  subordinate  to  the 
Viceroyalty  of  Peru  by  the  Royal  cedula  of  1550,  under 
which  it  remained  permanently  after  various  altera- 
tions. 

It  cannot  be  successfully  maintained  that  the  Ve- 
ragua  which  was  called  Cartago  or  Costa  Rica  passed, 
in  1550,  with  Tierra  Firme  to  Peru,  for  it  is  clearly 
shown  1)y  the  Royal  cedula  of  incorporation  that  only 
Castilla  del  Oro  was  in  question,  and  it  has  been  shown 
that  the  former  continued  in  the  Audiencia  of  the  Con- 
fines. It  is  enough  to  remember  how  the  latter  inter- 
vened in  the  affairs  of  Costa  Rica  and  how  the  King 
addressed  himself  to  it  in  ever3'^thing  relating  to  the 
conquest  and  government  which  he  entrusted  to  Ortiz, 
Cavalion,  Vazquez  de  Coronado,  Perafan  de  Ribera  and 
Artieda.  The  Royal  cedula  of  August  9,  1561  (Doc. 
No.  48),  denying  the  claims  of  the  Government  of 
Tierra  Firme  with  respect  to  the  Province  of  Veragua 
and  that  of  Costa  Rica,  should  be  especially  borne  in 
mind. 

The  Audiencia  of  the  Confines  disappeared  in  1563, 
having  been  transformed  into  another,  called  the  Au- 
diencia of  Panama,  as  result  of  the  transfer  to  that 
city  of  the  capital  of  the  former.  And  in  that  Audi- 
encia of  Panama  (which,  however,  must  not  be  con- 
fused with  the  first  of  that  name),  Costa  Rica  con- 
tinued, with  other  provinces  that  had  pertained  to  the 
Audiencia  of  the  Confines,  from  which  Guatemala  had 
been  segregated  and  to  which  Tierra  Firme  was  incor- 
porated.    The  Audiencia  of  Guatemala  having  been 


82 

re-established  in  1568,  and  that  of  Panama  having  been 
dismembered,  Costa  Rica  followed  the  former  and 
Tierra  Firme  remained  in  the  latter. 

(b)  From  Its  Re-establishment   {1568)   Down  to  the 
Promulgation  of  the  RecopiUuidn   {1680). 

The  Audiencia  of  Panama  objected  to  being  deprived 
of  the  jurisdiction  which  had  been  segregated  from  it, 
and  it  became  necessary  for  the  King,  by  the  Royal 
cedula  of  August  1571  (Doc.  No.  59),  to  order  that 
it  should  not  continue  any  longer  to  act  in  matters  per- 
taining to  that  of  Guatemala  and  to  declare,  by  the 
Royal  cedula  of  July  17,  1572  (Doc.  No.  61),  that  the 
affairs  of  Nicaragua  and  Costa  Rica  belonged  to  the 
latter. 

The  Audiencia  of  Guatemala  continued,  in  fact,  to 
occupy  itself  with  the  government  of  and  the  admin- 
istration of  justice  in  Costa  Rica,  as  it  had  done  before 
its  suppression.  Thus  we  see  it  calling  to  account 
Perafan  de  Ribera,  Diego  de  Artieda,  Fernando  de  la 
Cueva,  Ocon  y  Trillo  and  other  governors;  we  see  it 
taking  measures  concerning  allotments  of  Indians  and 
exemptions  from  tribute,  and  intervening  in  all  the 
other  affairs  of  that  province,  by  virtue  of  its  inherent 
powers,  or  by  order  of  the  King,  until  1680,  when  the 
Recopilacion  was  published,  to  say  nothing  of  those 
acts  which  are  set  forth  with  their  dates  in  the  defense 
of  Costa  Rica. 

The  audiencia,  however,  had  to  refrain  from  ap- 
pointing the  Governors  of  Costa  Rica,  because  the  King 
reserved  their  appointment  to  himself,  according  to 
the  Royal  cedula  of  May  26,  1572  (Doc.  No.  60),  which 
he  addressed  that  body;  but  it  did  name  those  oflScers 


83 

ad  wtcrim,  pending  permanent  appointments  by  tiie 
King,  in  the  case  of  Alonso  de  Anguciana  (1573),  Ve- 
hizquez  Kamiro  (1590),  Gonzalo  de  Palma  (1592),  Gon- 
zalo  Vazquez  de  Coronado  (1600),  Arias  Maldonado 
(1662),  etc. 

And,  finally,  evidence  that  Costa  Rica  depended  upon 
the  Audiencia  of  Guatemala,  is  found  in  the  protracted 
proceedings  arising  out  of  the  plan  to  aggregate  it  to 
the  Audiencia  of  Panama.  On  September  25th,  1609 
(Doc.  No.  75),  Philip  III  asked  the  Audiencia  of  Guate- 
mala whether  it  would  be  desirable  to  place  the  Prov- 
ince of  Costa  Rica,  ''which  is  under  the  jurisdiction  of 
your  Audiencia,"  in  the  district  of  that  of  Panama; 
Philip  IV  infomis  the  J*re.sident  of  the  latter,  on  Octo- 
ber 24,  1623,  that  he  is  investigating  the  matter,  and  in 
1627  and  1628  (Doc.  Nos.  235  and  236),  he  calls  upon 
the  Go\'ernor  of  Costa  Rica  for  reports ;  and  Charles  11, 
after  having  asked  the  Audiencia  of  Guatemala  for 
further  reports  concerning  the  aggregation  of  the 
Province  of  Costa  Rica  to  that  of  Panama,  declares  in 
Law  1,  title  2,  book  V,  of  the  Rccopilacion,  that  tlu^ 
Government  and  Captaincy-General  of  Costa  Rica  shall 
fomi  part  of  the  Audiencia  of  Guatemala,  dependent 
upon  the  Viceroyalty  of  New  Spain  (Mexico). 

The  foregoing  clearly  demonstrates  that,  after  ma- 
ture reflection  and  in  harmony  with  its  histor>',  the 
Province  of  Costa  Rica  was  expressly  recognized  by 
the  Rccopilacion  de  Indias  as  such  province  and  a 
dependency  of  the  Audiencia  of  Guatemala. 


IV. 


DTTERPRETATION  OF  LAW  9,  TITLE  1,  BOOK 
V,  DECLARING  THAT  THE  WHOLE  OF  THE 
PROVINCE  OF  VERAGUA  IS  UNDER  THE  GOV- 
ERNMENT OF  TIERRA  FIRME. 

1.    It  is  Not  Possible  to  Refer  to  the  Veragua  of  1537, 
as  Constituting  the  Whole  of  Veragua. 

Law  9,  title  1,  book  V,  of  the  Recopilacion  de  Indias 
(Doc.  No.  135),  begins  by  citing  as  its  precedent  the 
Royal  cedula  issued  by  the  Emperor  at  Valladolid  on 
March  2,  1537,  which  has  for  a  caption:  ''Let  the 
Province  of  Veragua  Belong  to  the  Government  of 
Tierra  Firme;"  and  its  text  contains  the  single  order: 
"Let  the  whole  Province  of  Veragua  belong  to  the  gov- 
ernment of  Tierra  Firme." 

This  word  ''whole,"  which  does  not  figure  in  the 
heading,  and  the  above  reference  to  the  Royal  cedula 
of  1537,  constitute  the  principal  basis  of  Colombia's 
argument  in  her  effort  to  maintain  that  the  Province 
of  Veragua  to  which  the  Recopilacion  de  Indias  refers 
as  subordinated  to  the  Audiencia  of  Panama  of  the 
Viceroyalty  of  Peru,  comprised  the  whole  of  what  was 
Veragua  in  the  purview  of  that  Royal  cedula.  In  her 
argument  Colombia  seeks  to  make  the  law  say,  by  its 
citation  and  its  text,  that  it  restores  things  to  the  state 
in  which  they  were  found  in  1537  and  therefore  nulli- 
fies everything  that  was  done  subsequently  to  that  date. 

We  begin  by  making  it  clear  that  these  citations  of 
cedulas  and  pragmdticas  which  are  seen  at  the  heads  or 
on  the  margins  of  the  laws  in  the  compilations,  only 
serve  to  indicate  the  origin  or  antecedents  of  the  text^ 


85 

they  form  no  part  of  the  text.  They  have,  therefore, 
no  virtue  as  precepts  unless  they  are  reproduced  in 
the  text  in  which  case  their  authority  is  revived.  Still, 
they  always  supply  the  historical  explanation  of  the 
respective  laws,  although  not  in  every  case  as  their 
commentaries,  since  they  may  be  complete  negations 
thereof. 

The  Royal  cedula  of  Valladolid,  of  March  2,  1537,  is 
cited  once  at  the  beginning  of  this  Law  9,  title  1,  book 
V,  relative  to  Veragua,  and  again  at  the  beginning  of 
Law  4,  title  15,  book  II  (Doc.  No.  106),  which  deals 
with  the  Audiencia  of  Panama.  Are  there  two  cedulas 
of  the  same  date,  or  only  one?  If  two,  then  the  one 
that  is  cited  with  reference  to  Veragua,  could  not  be 
the  one  which  Colombia  defends  with  so  much  earnest- 
ness ;  if  there  is  but  one,  then,  since  it  does  not  speak 
of  the  Audiencia  of  Panama,  the  citation  of  Law  4 
can  be  understood  in  no  other  sense  than  as  the  author- 
ity for  the  formation  of  that  audiencia. 

It  is  impossible,  therefore,  to  assert  successfully  that 
by  the  mere  fact  of  the  citation  of  the  Royal  cedula  of 
March  2,  1537,  by  Law  9  it  could  re-enact  that  cedula 
and  abrogate  everything  that  had  been  commanded 
subsequently  thereto ;  that  law  cited  the  cedula  as  the 
organic  act  of  the  Province  of  Veragua,  just  as  another 
law  cited  it  as  a  precedent  of  the  Audiencia  of  Panama. 

Let  it  be  observed,  furthermore,  that  that  invocation 
of  this  Royal  cedula  by  Colombia  for  the  purpose  of 
shomng  that  by  virtue  thereof  the  whole  of  Veragu.i 
became  a  single  province  and  belonged  to  the  Govern- 
ment of  Tierra  Firme,  is  from  every  point  of  view 
contraproducentem.  First,  because  this  very  Royal 
cedula  establishes  the  division  of  Veragua  into  two 
parts,  confirming  the  creation  of  the  Dukedom  of  Ve- 


86 

ra^Tua  with  its  square  of  twenty-five  leagues,  and  com- 
manding that  such  lands  as  might  be  left  after  taking 
out  these  twenty-five  leagues,  should  be  subject  to  the 
Government  of  Tierra  Firmo,  called  Castilla  del  Oro. 
Second,  because  the  dukedom  granted  to  Don  Luis 
Columbus  by  the  Royal  cedula  of  January  19,  1537, 
was  expressly  left  subject  to  the  jurisdiction  of  the 
Audiencia  of  the  Island  of  Espafiola.  Therefore,  when 
the  Province  of  Veragua  was  re-established  in  1537, 
the  re-establisliment  did  not  involve  the  entirety  of  that 
province  but  only  that  part  which  was  left  after  segre- 
gating the  square  of  twenty-five  leagues  of  the  duke- 
dom. 

In  order  to  defend  the  integrity  of  that  Province  of 
Veragua  which  she  has  dreamed  of  as  belonging  to  tho 
Government  of  Tierra  Firme,  from  Castilla  del  Ore 
as  far  as  Cape  Gracias  a  Dios,  Colombia  must  begin 
by  getting  rid  of  the  Royal  cedula  of  1537,  and  then 
rely  upon  the  dispositions  which  have  abrogated  it. 

We  have  already  seen  how  the  primitive  Veragua 
was  broken  up,  by  virtue  of  its  historical  evolution 
and  the  acts  of  the  Sovereign,  into  three  provinces, 
each  distinct  fiom  and  independent  of  the  other;  the 
Province  of  Veragua,  properly  so-called,  and  the  only 
one  that  kept  this  name,  that  of  Costa  Rica,  and  that 
which  began  by  calling  itself  Teguzgalpa.  We  have 
seen,  also,  how  from  the  birth  of  the  Audiencia  of  the 
Confines,  or  Guatemala,  down  to  the  time  of  the  Re 
copilacion,  inclusive,  the  Province  of  Costa  Rica  be- 
longed to  it  and  to  the  Viceroyalty  of  New  Spain,  and 
reinained  separated  from  the  Government  of  Tierra 
Firme  w^hich  depended  upon  the  Viceroyalty  of  Peru. 
AVe  deem  it  unnecessary  to  insist  further  upon  these 


87 

propositions  after  the  extended  demonstration  which 
we  have  already  made  of  them ;  it  will  be  sufficient*  to 
add  this  demonstration  to  the  reasons  stated,  in  order 
to  establish  conclusively  the  fact  that  Law  9,  title  15, 
book  V,  cannot  be  interpreted  in  the  sense  of  referring 
to  the  Veragua  of  1537  as  embracing  the  whole  of  the 
Province  of  Veragua. 

2     Nor  is  the  Hypothesis  Admissible  that  Veragua  is 
a  Major  and  Costa  Rica  a  Minor  Province. 

Colombia  defends  herself  in  retreat,  by  referring  the 
totality  of  the  Province  of  Veragua  as  of  the  year  1560 
and  seeking  to  construct  the  duality  of  the  Govern- 
ments of  Veragua  and  Costa  Rica,  mentioned  by  the 
Recopilacion,  by  distinguishing  them  as  major  and 
minor  provinces. 

According  to  the  opinion  prepared  by  one  of  the 
eminent  counsel,  the  Royal  cedula  of  July  18,  1560 
(Doc.  No.  39),  reveals  the  fact  that  out  of  ancient 
Veragua  there  had  been  formed  two  provinces,  one  a 
large  one  which  kept  the  tradition  and  the  name  of 
Veragua,  and  the  other  a  small  one  which  was  subject 
to  the  jurisdiction  of  Nicaragua,  this  small  one  being 
the  province  called  Costa  Rica. 

In  that  very  Royal  cedula,  the  King  specifically  de- 
clares the  division  of  Veragua  into  two  parts;  that 
entrusted  to  Francisco  Vazquez,  with  which  the  Prov- 
ince of  Veragua  was  constituted  and  of  which  he  was 
afterwards  appointed  Governor  and  Captain-General; 
and  the  part  confided  by  commission  to  Ortiz  de  El- 
gueta,  which  his  successors  conquered  and  governed 
under  the  name  of  Costa  Rica  and  which  reached  as 
far  as  the  boundaries  of  the  other. 


88 

Not  because  it  was  indicated  that  the  conquest  would 
be  initiated  on  the  side  next  to  Nieoya,  or  because  Ortiz 
was  Alcalde  mayor  of  tlie  latter  or  because  of  the  fact 
that  governors  appointed  for  the  former  were  made 
also  governors  of  Nicaragua  in  order  to  facilitate  tha 
conquest,  can  it  be  maintained  that  Costa  Rica  was 
reduced  to  the  ''little  scrap"  of  which  the  Memoranda 
of  Colombia  speak  so  disparagingly,  or  that  Costa  JEtica 
can  be  confused  with  Nieoya  or  Nicaragua.  In  our 
opinion  we  have  made  sufficiently  clear  the  manner  in 
which  the  Province  of  Costa  Rica  was  formed,  from 
the  commission  given  to  Ortiz  de  Elgueta  and  trans- 
mitted to  Cavallon,  and  it  would  seem  to  be  unneces- 
sary to  return  to  that  historical  aspect. 

On  the  other  hand,  the  idea  of  a  distinction  into 
major  and  minor  provinces  is  not  applicable,  for  ac 
cording  to  Law  1,  title  1,  book  V,  of  the  Recopilacion 
de  Indias  (Doc.  No.  131),  the  designation  of  major  is 
only  given  to  the  districts  of  the  audiencias,  within 
which  were  found  the  minor  ones,  such  as  the  govern- 
ments, alcaldi((s  :!i<t!jor('s,  etc.,  and  Veragua  never  was 
an  audiencia,  neither  was  Costa  Rica. 

But  both  were  provinces,  in  the  category  of  goj^ern- 
ments  and  captaincies-general,  as  they  are  expressly 
considered  by  Law  1,  title  2,  book  V,  of  the  Recopila- 
cion. And  as  the  salaries  are  in  proportion  to  the 
rank  of  the  offices,  and  the  latter  with  the  character 
or  importance  of  the  provinces,  let  us  look  into  the 
assignment  of  salaries  made  by  this  same  law:  Gov- 
ernor and  Captain-General  of  the  Province  of  Costa 
Rica,  2,000  ducats;  Governor  and  Captain-General  of 
the  Province  of  Veragua,  1,000  pesos  ensayados;  Gov- 
ernor of  Nicaragua,  1,000  ducats,  and  Alcalde  mayor 
of  Nieoya,  200  ducats. 


89 

It  will  be  noted  that  the  salary  of  2,000  ducats  as- 
signed to  the  Governor  and  Captain-General  of  Costa 
Rica  is  the  same  that  was  provided  for  that  office  by 
the  Royal  cedulas  of  1573  and  1574,  which  constituted 
the  capitulacion  and  appointment  of  Diego  de  Arti- 
eda— a  new  fact,  by  the  way,  in  favor  of  its  efficacy.  And 
if  this  salary  be  compared  with  the  others  mentionod, 
how  can  it  be  imagined  that  the  Government  and  Cap- 
taincy-General of  Costa  Rica  was  of  less  importance 
than  that  of  Veragua,  or  that  it  could  have  been  made 
dependent  upon,  or,  subordinated,  to  the  mere  Gov- 
ernment of  Nicaragua  or  the  Alcaldia  mayor  of  Ni- 
coya? 

Nor  does  the  whole  of  the  Province  of  Veragua  to 
which  Law  9  alludes,  constitute  the  whole  of  this  sup- 
posed major  province  of  1560,  with  the  exception  of 
the  "little  scrap"  {le  petit  lambeau)  adhering  to 
Nicoya  or  Nicaragua. 

3.    Explanation  of  This  Law,  by  Making  it  Refer  to 
the  Province  Emanating  From  the  Dukedom. 

In  our  opinion  Law  9,  title  1,  book  V,  can  only  be 
interpreted  by  construing  it  as  referring  to  the  Prov- 
ince of  Veragua  into  which  the  dukedom  was  converted, 
because  this  interpretation  is  based  on  fact,  on  history, 
on  the  reason  for  its  being  included  in  the  Recopilacion 
de  Indias  and  on  its  harmony  with  other  laws  of  the 
same. 

The  only  Province  of  Veragua  in  existence  when  the 
Recopilacion  was  published,  in  1680,  was  the  one  defi- 
nitively constituted  in  1560,  proceeding  from  the  sup- 
pressed ducal  seignory,  and  differing  from  the  re- 
mainder of  the   ancient  Royal   Veragua.     This   was 


90 

called  Costa  Rica  in  the  time  of  Sanchez  de  Badajoz 
(1539) ;  Cartago  and  Costa  Rica  in  the  time  of  Diego 
Gutierrez  (1540) ;  Cartago  or  New  Cartago  and  Costa 
Rica  in  that  of  Cavallon  (1561),  and  Costa  Rica  only 
upon  being  constituted  as  a  province  on  the  occasion 
of  the  appointment  of  Governor  of  Vazquez  de  Coro 
ciido  (1565) ;  the  province  retained  that  name  after 
the  separation  therefrom  of  Teguzgalpa  when  the  gov- 
ernment of  Diego  de  Artieda  was  created  (1573),  and 
until  it  ceased  to  be  a  Spanish  province ;  and  it  is  not 
to  be  imagined  that,  upon  the  publication  of  the  Recopi- 
lacion  de  Indias,  its  laws,  could  refer  to  any  Pro\inces 
of  Veragua  and  Costa  Rica  other  than  those  that  then 
existed,  abandoning  reality  and  going  back  over  the 
course  of  history  in  order  to  confuse  them  with  the 
primitive  Veragua  of  the  coast  discovered  by  Colum- 
bus, or  of  the  capitulaciones  with  Nicuesa  (1508),  or 
with  Felipe  Gutierrez  (1534). 

Colombia  places  a  limit  on  this  historical  retrogres- 
sion at  March  2,  1537,  and  bases  her  arguments  solely 
upon  the  citation  made  in  Law  9,  giving  to  those  cita- 
tions which  only  indicate  origins,  a  value  they  do  not 
possess ;  but  without  noting  that  it  was  impossible  to 
revive  the  totality  of  the  old  Veragua  by  the  enact- 
ment of  the  Royal  cedula  of  that  date,  since  this  Royal 
cedula  sanctioned  its  division  into  two  parts:  Royal 
Veragua  and  Ducal  Veragua. 

It  is  just  because  this  dicision  was  sanctioned  in  the 
Royal  cedula  of  March  2,  1537,  that  we  can  explain  its 
citation  in  Law  9,  understanding  that  it  mentions  that 
division  as  a  historico-legal  precedent  of  the  Province 
of  Verarjiia,  derived  from  the  dukedom,  which  was 
treated  in  the  text,  just  as  it  also  cited  that  cedula  as 


91 

an  ;nit('('('(]<Mif   to  llio  formation  of  the  Audiencia  of 
Panama  or  Tiorra  Firme. 

Let  this  citation  be  disregarded,  as  being  a  mere 
historical  reference,  and  what  remains  to  Colombia 
wherewith  to  maintain  that  the  Rcropilacion  de  Indias 
abi'ogated  everything  subsequent  to  said  Royal  cedula? 
The  text  of  the  law,  far  from  enacting  the  Royal  cedula, 
differs  therefrom  as  regards  the  argument  of  Colom- 
bia, since  it  speaks  of  totality  and  not  of  division,  as 
does  that  cedula. 

Why  was  such  a  text  written  into  the  Recopilacion 
de  Indiasf  For  the  purpose  apparent  in  other  similar 
cases — that  of  explaining  the  territorial  division  and 
settling  the  doubts  that  might  be  raised  concerning  the 
respective  jurisdictions. 

Title  1,  book  V,  which  treats  of  *'the  districts,  divi- 
sion and  aggregation  of  the  Governments,"  begins,  in 
its  Law  1,  by  laying  down  the  principle  that  governors 
shall  preserve  the  limits  of  their  districts,  continues 
with  the  explanation  of  the  dependency  in  which  cer 
tain  audiencias  are  found  in  respect  to  the  two  vice- 
royalties,  and  then  defines  the  dependency  of  certain 
governments  with  respect  to  the  audiencias. 

Because  of  the  fact  tliat  tlie  Audieruyia  of  Panama 
went  through  so  many  alterations,  and  was  contiguous 
with  the  Viceroyalty  of  New  Spain  and  with  other  au- 
diencias of  the  Viceroyalty  of  Peru,  it  was  the  one  to 
which  the  most  attention  was  given,  particularly  with 
reference  to  its  Province  of  Tierra  Firme. 

Law  2  says  (Doc.  No.  132) :  "The  Province  of  Tierru 
Firme  belongs  to  the  Government  of  Peru."  And  to 
the  end  that  there  might  be  no  doubt  remainins:,  by 
reason  of  its  having  figured  as  a  part  of  the  Audiencia 
of  the  Confines,  Law  7  (Doc.  No.  133)  reproduces  the 


92 

Royal  cedilla  of  1550,  saying  that  "  *  *  *  the  Prov- 
ince of  Tierra  Firme,  called  Castilla  del  Oro,  shall 
belong  to  the  Provinces  of  Peru  and  not  to  those  of 
New  Spain." 

liaw  8  (Doc.  No.  134)  thereupon  indicates  the  eastern 
limit  on  the  north  with  the  Audiencia  of  Santa  Fe,  to 
which  the  Province  of  Cartagena  belonged,  and  de- 
clared that  the  back  portion  of  the  Gulf  of  Uraba  be 
longs  to  Tierra  Firme.  And  finally,  in  order  to  fix 
the  western  limit  and  banish  all  doubt  of  the  fact,  that, 
according  to  Law  7,  the  Viceroyalty  of  Peru  and  Au- 
diencia of  Panama  should  terminate  with  Castilla  del 
Oro,  Law  9  provides :  "*  *  *  Let  the  whole  Prov- 
ince of  Veragua  belong  to  the  Government  of  Tierra 
Firme." 

This  Law,  then,  forms  a  harmonious  whole  with  these 
other  laws  of  the  same  title,  and  responds  to  the  same 
idea  that  they  do.  x\nd  it  is  in  harmony  also  with 
Law  1  of  title  2  (Doc.  No.  136),  which  follow^s  there- 
after, and  includes  the  Province  of  Costa  Rica  in  the 
Audiencia  of  Guatemala  and  Viceroyalty  of  New  Spain, 
in  conformity  with  the  resolution  taken  by  Charles  II, 
when  the  Recopilacion  was  published,  after  the  long 
proceedings  which  arose  out  of  the  plan  to  include  that 
province  in  the  Audiencia  of  Panama. 

There  cannot,  then,  be  the  slightest  doubt  that  the 
Province  of  Veragua,  to  which  Law  9  referred,  was 
that  which  arose  out  of  the  dukedom,  and  this  is  even 
confinned  by  the  same  citation  of  tlie  Royal  cedula  of 
1537,  relative  to  the  dukedom  of  which  it  was  formed. 

But  if  this  is  the  simple  and  clear  explanation  of 
Law  9,  the  heading  of  which  says  that  the  governmenr. 
of  tlie  Province  of  Veragua  belongs  to  Tierra  Firme, 


93 

how  is  the  phicing  of  tlie  word  "whole"  at  the  bou^iii- 
ning  of  its  text  to  be  explained? 

It  may  be  redundancy,  which  is  frequently  made  use 
of  to  give  more  force  to  expression  and  to  leave  a 
phrase  more  complete;  but  we  think  tiiere  were  special 
reasons  for  saying  "the  whole  Province  of  Veragua." 

The  Law  could  not  say  "the  whole  Dukedom  of 
Veragua,"  since  it  had  been  suppressed;  neither  could 
it  refer  to  the  boundaries  of  the  latter,  because  they 
had  not  been  actually  traced ;  nor  were  they  in  fact  the 
imaginary  boundaries  mathematically  fixed  ))y  merid- 
ians and  parallels.  As  to  the  contiguous  provinces,  they 
had  been  altered  in  one  way  or  another,  and  there  were 
also  intermediate  spaces  which  had  been  the  object  of 
disputes,  and  others  which  at  any  moment  might  have 
given  rise  to  controversy.  It  is  enough  to  remember  that 
from  the  meridian  of  the  Belen  river,  the  eastern  boun- 
dary of  the  dukedom,  as  far  as  Castilla  del  Oro,  which 
was  fixed  as  the  limit  of  the  government  of  Felipe  Gu- 
tierrez (1534),  there  were  territories  which  were  not  in- 
cluded in  the  ducal  demarcation ;  that  the  demarcation 
of  Ortiz  de  Elgueta,  Cavallon  and  Vazquez  de  Coronado 
could  lead  to  the  belief  that  the  boundaries  of  their 
government  reached  as  far  as  the  line  between  Nombre 
de  Dios  and  Panama  (1559-1565) ;  and  that  the  demar- 
cation of  Artieda  (1573)  fixed  the  limits  of  Costa  Bica 
"as  far  as  the  Province  of  Veragua,"  making  it  com- 
prise the  Bocas  del  Drago  on  the  north  and  the  Valh^ys 
of  Chiriqui  on  the  south. 

So  that  even  if  the  Province  of  Veragua  was  formed 
with  the  territory  of  the  Dukedom  of  Veragua,  it  diil 
not  coincide  with  its  mathematical  limits  and  it  con- 
tained parts  which  were  not  within  their  geometrical 


^^4 

configuration.  And  il  was  in  onr  judgment  to  avoid 
doubt  about  the  former  dukedom,  as  well  as  to  confirm 
the  solutions  to  doubts  which  had  been  raised  regard- 
ing the  existence  of  the  province,  that  the  law  said: 
"The  whole  of  the  Province  of  Veragua  *  *  *," 
which  was  equivalent  to  saying,  "all  that  may  be  or  is 
the  Province  of  Veragua,"  thus  sanctioning  its  exist- 
ence with  the  whole  extension  that  it  then  had. 


4.    Case  of  Supposed  Contradiction  of  This  Law  With 

Others. 

The  result  of  the  foregoing  explanation  is  that  Law 
9,  title  1,  book  V,  is  in  perfect  harmony  with  the  other 
laws  of  the  Recopilacion  de  Indias;  but  if  it  be  still 
insisted  that  this  law  resuscitated  the  ancient  Veragua 
by  re-enacting  the  Royal  cedula  of  1537  and  abrogating 
all  provisions  subsequent  thereto,  under  which  suppo- 
sition that  law  would  be  found  to  be  in  contradiction 
to  others  of  the  laws  mentioned,  we  would  suggest  the 
following  to  show  how  this  contradiction  might  be 
settled. 

It  is  not  unusual  in  the  compilations  to  find  laws  which 
are  contradictor}^,  because  they  have  been  collected 
from  different  periods  without  due  attention  always  to 
comparing  them,  or  because  of  the  lack  of  antecedents 
essential  to  their  proper  interpretation.  So  that,  when 
it  is  sought  to  settle  conflicts  between  laws  or  parts  of 
a  law  in  a  certain  compilation,  which  were  originally 
enacted  at  different  dates,  failing  any  other  solution, 
it  may  be  taken  as  a  rule  that  the  earlier  law  shall  be 
considered  as  amended  or  abrogated  by  the  later  one, 
as  the  case  may  be. 


Q5 

Following  this  criterion,  and  supposing  that  Law  9, 
title  1,  book  V,  could  have  resuscitated  tlie  Government 
of  Tierra  Firme  of  1537  and  included  therein  all  Ve- 
ragua,  ducal  and  not  ducal,  that  law  must  be  considered 
as  abrogated  by  Law  7  of  the  same  title;  this  is  the 
Eoyal  cedula  of  1550,  according  to  which  only  Castilla 
del  Oro  was  incorporated  into  the  Viceroyalty  of  Peru, 
and  all  of  Veragua  was  left  in  the  Audiencia  of  the 
Confines  and  Viceroyalty  of  New  Spain.  And  although 
the  effort  is  made  to  negative  the  existence  of  tho 
Province  of  Costa  Rica  by  pointing  out  the  omission 
of  its  name  in  Law  6,  title  15  of  book  II  (Doc.  No.  107), 
and  by  saying  that  that  law  was  enacted  by  Philip  IV, 
the  reply  is  instantly  forthcoming  that  the  law  was 
modified  by  his  successor,  Carlos  II,  who  decreed  Law 
1,  title  2,  book  V  (Doc.  No.  136),  which  included  the 
Government  and  Captaincy-General  of  the  Pro\'ince  of 
Costa  Rica  in  the  Audiencia  of  Guatemala  and  Vice- 
royalty  of  New  Spain. 

V. 

VALIDITY  OF  THE  ROYAL  CEDULAS  WHICH 
ARE  DEMARCATORY  ACCORDING  TO  THE 
RECOPILACION. 

1.  Principles  Established  by  the  Recopilacion  in  Re- 
gard to  the  Validity  of  the  Royal  Cedulas  Prior  and 
Subsequent  Thereto. 

Counsel  for  Colombia  assume  that  the  rights  of 
Costa  Rica  are  supported  only  by  Royal  cedulas,  and 
then  deny  that  tliose  cedulas  possess  any  legal  force, 
on  the  ground  that  the  Brropilaclon  de  Indias  rendered 
them  whoUv  innocuous. 


96 

But  it  is  not  a  fact,  as  wo  have  already  indicated  in 
speaking  of  the  Recop'dacion  in  general,  that  the  latter 
abrogated  all  the  prior  dispositions.  The  Royal  cedula 
of  May  18,  1680,  which  authorized  the  publication  of 
that  code  and  prefaced  it,  says:  "*  *  *  leaving  in 
force  and  eifect  the  Cedulas  and  Ordinances  given  to 
our  Royal  Audiencias,  in  so  far  as  they  are  not  con- 
trary to  the  Laws  herein. ' ' 

Law  1,  title  1,  book  II  (Doc.  No.  92),  provides  that 
whenever  the  necessity  may  arise  for  making  new  law^s 
reports  shall  be  made  to  the  Council  of  the  Indies  and 
it  declares  that  the  ordinances  enacted  for  cities  and 
communities,  as  well  as  those  made  for  the  welfare  of 
the  Indians  and  for  good  administration,  shall  continue 
without  alteration,  provided  they  be  not  contrary  to 
the  laws.  And  Law  2,  of  the  same  title  and  book  (Doc. 
No.  93),  directs  that  in  matters  not  covered  by  the 
laws  of  the  Recopilaeion  '*or  by  Cedulas,  Provisiones 
or  Ordinances  issued  for  the  Indies  and  not  revoked, 
or  by  those  which  are  promulgated  by  our  order, ' '  the 
laws  of  Castile  shall  be  enforced. 

By  Law  2,  title  2,  book  II  (Doc.  No.  94),  the  Council 
of  the  Indies  is  given  supreme  jurisdiction  of  all  the 
western  Indies,  and  empowered  it  to  "make,  with  our 
advice,  the  general  and  special  Laws,  Pragmatics, 
Ordinances  and  Provisiones  *  *  *  ;"  and  the  Coun- 
cil is  further  instructed  that  those  ***  *  *  provi- 
sions and  commands  shall  be  in  everything  and  by 
everybody  complied  with  and  obeyed  in  all  places." 

In  this  way  the  Recopilaeion  de  Indias  laid  down 
these  principles :  First,  that  Royal  cedulas  which  arc 
not  in  contradiction  to  its  laws  shall  continue  in  force ; 
and  second,  that  all  Royal  cedulas  thereafter  issued 


97 

should  attain  to  the  dignity  of  Laws,  if  enacted  by  th'» 
Council  of  the  Indies,  by  and  with  the  advice  of  the 
King. 

2.    Legality  of  Territorial  Division  and  the  Bound- 
aries of  Districts. 

This  is  perfectly  Avell  settled  by  two  laws  decreed 
by  the  very  authors  of  the  Recopilacion  de  Indias. 

'  Law  1,  title  15,  book  II,  of  Philip  IV  (Doc.  No.  105), 
after  explaining  how  all  the  discoveries  of  the  Indies 
were  divided  into  twelve  audiencias,  the  districts  of 
which  were  subdivided  into  governments,  corregimien- 
tos  and  alcaldias  mayores,  which  were  subordinate  to 
those  audiencias,  and  ***  *  *  all  to  our  Supreme 
Council  of  the  Indies,  which  represents  our  Royal  Per 
son, ' '  says :  "  *  *  *  We  establish  and  command, 
that  now  and  until  We  otherwise  order,  the  said  twelve 
Audiencias  shall  be  retained,  and  that  within  the  dis- 
trict of  each  one  the  Governments,  Corregimientos  and 
Alcaldias  Mai/ores  which  they  now  have  shall  be  pre 
served,  and  that  no  change  he  made  therein,  without 
our  express  order  or  that  of  our  said  Council."  Then 
follow  the  laws  making  the  demarcation  of  audiencias. 

Law  1,  title  15,  book  II,  of  Philip  IV  (Doc.  No.  105), 
after  setting  forth  the  advantages  of  the  differentia- 
tion of  the  districts  and  territories,  says:  *'We  order 
and  command  the  Viceroys,  Audiencias,  Governors, 
Corregidorcs  and  Alcaldes  mayores  to  keep  and  ol)- 
serve  the  limits  of  their  jurisdictions,  as  they  may  be 
fixed  by  the  Laivs  of  this  book,  the  Titles  of  their  of- 
fices, the  Provisiones  of  the  superior  Government  of 
the  provinces,  or  by  use  and  custom  legitimately  intro- 
duced."    Then  follow  the  laws  designating  the  dis- 


98 

tricts  of  various  govermnents,  among  which  are  found 
those  of  the  Audieneia  of  Panama. 

So,  then,  the  RecopilaciGti  de  Indias  recognized  the 
existing  legality  of  the  demarcations  at  the  moment  it 
was  published;  and  it  not  only  recognized  it,  but  it 
continued  it,  in  so  far  as  it  was  not  in  contradiction 
with  its  laws,  and  even  prohibited  any  change  therein 
without  express  order  of  the  King  or  of  the  Council  of 
the  Indies. 

These  provisions  relating  to  territorial  division  were 
in  accord  with  the  general  provisions  concerning  the 
value  of  Royal  cedulas  prior  and  subsequent  to  the 
BecopUac'iou,  and  they  all  sanction  the  validity  of  the 
Royal  c<Mlula>:  that  established  boundaries.  Enact- 
mejits  prior  to  the  Rrcopilacion,  continued  in  force  not 
only  by  reason  of  being  Royal  cedulas  which  did  not 
contradict  that  code,  but  because  they  established  the 
stafufi  quo  of  territorial  division;  those  that  were  is- 
sued afterwards  were  required  to  be  by  the  express 
order  of  the  King  or  the  Council  of  the  Indies,  in  order 
to  modify  the  demarcations  existing  in  1680. 

The  only  condition  that  qualified  the  efficacy  of  the 
Royal  cedulas  demarcatory  of  boundaries,  and  deter- 
mining the  legal  status  of  16S0,  was  that  they  should 
not  be  in  contradiction  to  what  was  provided  by  thj 
laws  contained  in  the  Recopilacion.  But  as  these  laws 
only  indicated  in  a  general  way  the  boundaries  of  the 
audiencias  and  solved  various  doubts  concerning  thj 
inclusion  of  certain  provinces  therein,  the  Royal  de 
raarcatory  cedulas  which  specified  those  boundaries 
and  indicated  those  of  the  governments — without  being 
oiiytoscd  to  the  general  demarcation — beside  being 
valid,  had  the  importance  of  being  complementary  to 
the  Recopilacion  itself. 


99 
3.     Special  Consideration  of  the  Capitulaciones. 

The  Royal  cedulas  approving  the  capitulaciones  for 
the  discovery  and  settlement  of  territories,  being  Royal 
cedulas  which  wore  not  opposed  to  the  laws  of  the 
Recopilacion,  and  having  produced  the  legal  status  of 
the  demarcations,  unite  the  conditions  requisite  to  their 
validity  and  efficacy  in  the  matter  of  territorial  divi- 
sion; they  disregard  the  personal  aspect  of  those 
capitulaciones  and  consider  them  in  their  character  as 
demarcatory  orders.  But  Counsel  for  Colombia  only 
see  in  them  a  contract,  of  no  consequence  in  public 
law;  we  are  therefore  impelled  to  a  special  considera- 
tion of  the  subject. 

{a)  Juridical  Character  of  the  Capitulaciones. 

Counsel  for  Colombia  say: 

"The  jurisdictional  demarcations,  the  deter 
mination  of  territories  submitted  to  Viceroys, 
Governors  or  Audiencias,  were  never  made  by 
means  of  capitulaciones  or  contracts  between 
the  State  and  private  individuals,  but  by  Royal 
cedulas,  Royal  orders,  acts  of  Public  Authority 
and  of  the  sovereignty  of  a  unilateral  character, 
such  as  the  exercise  of  dominion  over  the  terri- 
tory of  the  Nation." 

And,  generalizing  the  question,  they  add : 

'*It  is  a  principle  of  Public  Law,  inherent  in 
the  very  essence  of  the  sovereigTily  of  the  State, 
that  the  territorial  division  shall  be  a  fuatte." 
submitted  directly  to  the  decision  of  the  sov 
ereign.  When  the  sovereignty  is  exercised  over 
the  national  territory,  it  is  manifested  by  acts 


100 

of  Public  Authority,  in  conformity  with  the  con- 
stitution of  each  State  *  *  *,  but  to  no  one 
acquainted  with  the  law  would  it  occur  that  the 
concessions  of  the  State  to  its  subjects  for  the 
exploitation  of  territories  or  regions,  their  cul 
tivation  or  their  administration  under  this  or 
that  form,  implied  changes  in  the  political  and 
civil  jurisdiction." 

In  the  lirst  place,  it  may  be  said,  in  reply  to  these 
assertions,  that  a  capitulacion  presents  two  aspects : 
One  of  personnl  interest,  that  of  the  individual  in 
whose  favor  it  was  granted,  and  the  other  one  of 
puhlif  interest,  that  of  the  discovery,  the  colonization 
and  administration  of  the  territory  designated — a 
duality  in  aspect  wJiich  also  characterized  the  titles 
of  appointip.ent  to  governorships.  The  personal  aspect 
disappeared  with  the  individual  or  the  one  who  held 
the  granted  riglit ;  tlie  public  aspect  persisted,  the  ter- 
ritorial entity  being  left  with  the  boundaries  imposed 
upon  tlie  contracting  party  or  governor,  as  long  as 
these  limits  were  not  changed  by  any  subsequent  pro 
vision. 

Considering  the  capitulacion  as  a  compact,  it  was  in 
effect  a  bilateral  act,  which  produced  reciprocal  obliga- 
tions V>etween  an  individual  and  the  Crown.  But  prior 
to  the  contract  and  above  its  capacity  as  a  contract, 
it  had  tiie  character  of  a  unilateral  act  of  sovereignty, 
since  by  making  use  of  it  the  Monarch  provided  this 
mode  of  discovering,  colonizing  and  administering  a 
certain  territory  that  he  marked  out,  approved  the 
capitulacion  by  Royal  cedula,  and  when  its  term  ended, 
he  appointed  within  that  demarcation  another  person 
to  continue  its  administration.  Thus  were  formed  the 
different   territorial   demarcations   which,   under   the 


101 

names  of  governments,  corregimientos  and  alcaldias, 
went  to  fill  out  or  complete  the  general  demarcations 
of  the  audiencias,  under  a  regime  of  territorial  division 
established  by  the  Sovereign.  The  boundaries  pre- 
scribed in  the  capitulaciones  were  the  boundaries  of 
governments,  and  the  boundaries  of  the  government^ 
were  respected  and  confirmed  by  the  Recopilacion. 

Even  considering  the  capitulaciones  as  contracts, 
they  r-an  never  be  compared  with  those  of  private  law; 
they  must  come  under  the  category  of  contracts  foi* 
public  works  and  services  or  of  administrative  con- 
cessions. It  is  by  the  use  of  its  sovereignty,  and  in  no 
sense  by  abdicating  it,  that  the  State  undertakes  in 
this  manner  to  perform  services  and  works  or  to  utilize 
the  public  domain ;  and  in  doing  so,  it  imposes  as  con- 
ditions those  which  belong  to  the  nature  of  the  con- 
cession, work  or  service.  The  boundaries  of  the  land 
designated  to  the  contracting  party  or  the  concession 
aire  subsist  for  the  State  as  long  as  it  does  not  modify 
them.  Who  doubts,  for  example,  when  a  railway  line 
granted  to  a  corporation  reverts  to  the  State,  that  it 
will  have  the  same  delimitation  that  it  had  previously? 

Neither  can  there  be  any  successful  comparison  be 
tween  capitulaciones  and  such  administrative  acts; 
these  taken  altogether  constitute  a  system  of  coloniz- 
ation and  government  which  Spain  employed  in  her  ex- 
ploration, settlement,  pacification  and  government  of 
those  vast  territories — a  system  responding  to  needs 
that  are  not  felt  in  countries  completely  formed  to 
which  a  law  of  territorial  division  is  given. 

The  Recopilacion  de  Indias  recognized  and  confirmed 
the  result  of  this  system  which  had  been  employed,  that 
is  to  say,  the  status  quo  of  the  demarcations  that  had 


102 

been  made  at  the  time  it  was  published;  and  far  from 
disregarding  the  capitulaciones  it  takes  them  up  es- 
pecially in  its  book  IV,  and  gives  to  them  the  charac- 
teristics of  a  most  singular  institution  of  Public  Law, 
based  on  the  sovereignty. 

{h)  The  Capitulaciones  in  the  Light  of  Book  IV  of  the 
Recopilacion. 

Title  1,  of  book  IV  treats  of  "the  discoveries"  in 
general,  and  lays  down  the  principle  that  no  discovery 
or  settlement  may  be  made  at  the  expense  of  the  King, 
unless  the  latter  expressly  authorizes  it  (Law  17;  Doc. 
No.  115). 

It  provides  how  the  discoveries  are  to  be  granted; 
no  new  grants  were  to  be  made  unless  the  prior  ones 
should  have  been  carried  out  and  unless  the  King 
should  be  consulted ;  those  to  whom  the  right  to  make 
such  discoveries  had  been  granted  were  to  qualify  as 
men  in  whom  reliance  could  be  placed;  and  the  con- 
tracting parties  were  to  be  required  to  observe  the 
laws  and  instnictions,  to  give  an  account  of  their  work 
and  to  keep  within  the  boundaries  indicated;  in  the 
event  of  any  doubt  or  question  concerning  the  bounda- 
ries established  by  the  capitulaciones  they  were  to  be 
determined  by  the  respective  audiencia,  and  in  case 
two  audiencias  should  be  interested  in  the  same  matter 
and  fail  to  agree,  then  the  matter  was  to  be  determined 
by  the  Council  of  the  Indies  (Laws  1,  2,  4,  11  and  14; 
Doc.  Nos.  108,  109,  110,  113  and  114). 

It  directs  that  in  all  capitulaciones  the  word  "con 
quest'*  should  be  omitted  and  that  "pacification  and 
settlement"  be  used  instead  (Law  6;  Doc.  No.  Ill), 


103 

and  authorizes  the  explorers  to  give  names  to  the  terri 
tories,  rivers  and  mountains  they  might  discover  and 
to  the  cities  they  might  establish  (Law  8;  Doc.  No 
112). 

Title  2  concerns  itself  with  discoveries  by  sea;  it 
requires  special  permission  to  undertake  them  (Law  1 ; 
Doc.  No.  117) ;  it  imposes  the  condition  of  providing 
at  least  two  ships  (Law  2;  Doc.  No.  118) ;  and  cautions 
the  explorer  that  in  making  a  landing  upon  any  terri- 
tory he  must  take  possession  in  the  name  of  the  King 
(Lawll;Doc.  No.  119). 

Title  3  treats  of  discoveries  by  land;  it  directs  that 
an  inquest  be  taken  before  making  the  capitulaciones 
(Law  1;  Doc.  No.  120)  and  fixes  the  powers  of  those 
who  enter  into  them.  Among  these  are  the  power  to 
appoint  judges  in  the  territory  delimited,  which  in- 
cludes the  right  to  dismiss  therefrom  those  who  were 
already  there,  the  power  to  divide  this  territory  into 
districts,  to  appoint  alcaldes  therein,  to  make  ordi- 
nances for  its  proper  administration,  etc.  (Laws  13, 
16  and  17;  Doc.  Nos.  123, 125  and  126). 

Both  in  this  title,  and  in  the  three  that  follow,  which 
speak  of  the  pacifications  of  the  settlements,  and  of 
the  explorers,  pacificators  and  settlers,  various  rights 
are  stated  as  pertaining  to  the  holders  of  capitida- 
ciones,  such  as  the  erection  of  forts,  the  establishment 
of  cities,  the  exercise  of  jurisdiction  during  their  lives 
and  its  transmission  to  their  heirs,  the  holding  of  the 
title  of  alcalde  mayor,  if  their  territory  borders  with 
that  of  viceroys  or  audiencias,  and  even  that  of  Mar- 
quis if  it  were  an  Adelantado. 

The  Crown  imposed  obligations  and  restrictions 
upon  them  in  connection  with  the  settlement  and  paci- 


104 

fication  of  the  country;  Law  8,  title  4  (Doc.  No.  129), 
for  example,  prohibited  the  discoverers  from  making 
war  on  the  Indians  unless  absolutely  necessary,  or 
doing  any  other  harm  or  injury,  or  taking  anything 
from  them  without  pa>inent  therefor. 

All  of  this  shows  very  clearly  the  very  special  nature 
of  the  capitulaciones,  which  were  a  real  institution  of 
public  law,  under  the  shelter  of  which  were  formed 
the  provinces  and  their  districts.  The  boundaries  fixed 
by  the  Council  of  the  Indies  in  the  capitulaciones  grant 
ed  by  the  King  and  placed  under  the  protection  of  the 
audiencias,  were  also,  therefore,  boundaries  of  pub- 
lic law. 

Law  7,  title  7  (Doc.  No.  130),  provides  that  ***** 
the  district  and  territory  which  may  be  granted  by 
capitulacion  for  settlement,"  shall  be  allotted  by  first 
holding  out  the  town  plots,  commons  and  pasture  lands 
for  the  public,  and  then  separating  the  remainder  into 
four  parts,  one  for  the  founder  and  the  other  three 
parts  for  equal  division  among  the  settlers.  The  de- 
marcation thus  made,  it  created  rights  in  favor  of  the 
settlement  which  were  not  extinguished  with  the  dis- 
appearance of  the  founder. 

And,  finally,  the  Recopilacion  declared  the  capitula- 
ciones to  be  in  force  provided  they  were  not  opposed 
to  it  (Law  18,  title  1,  book  IV;  Doc.  No.  116),  as 
follows : 

"We  order  and  command  that  all  discoveries 
and  pacifications,  and  all  capitulaciones  and  writ- 
ings which  may  have  been  made  concerning 
them,  are  to  be  suspended  if  they  are  or  may  be 
in  contravention  of  the  Laws  of  this  hook;  and 
that  in  all  which  may  be  made  these  Laws  shall 
be  observed  and  executed,  without  exceeding  in 
whole  or  in  part." 


105 

(c)   Capitulaciones  Originating  the  Promnces  of  Ve- 
ragua  and  Costa  Rica. 

By  virtue  of  sucli  capitulaciones  the  Provinces  of 
Voragiia  and  Costa  Rica  began  to  take  legal  form 
according  to  the  general  system  of  that  period. 

The  Dukedom  of  Veragua  had  its  birth,  in  1536, 
under  the  arbitral  settlement  of  a  suit  growing  out  of 
the  capitulaciones  made  with  Christopher  Columbus  in 
1492.  When  the  dukedom  was  suppressed  by  agree- 
ment of  Don  Luis  Columbus  with  the  Council  of  the 
Indies,  in  1556,  its  territory  was  granted  by  capitula 
cion  to  Francisco  Vazquez,  who  was  thereunto  author- 
ized by  the  Royal  cedula  of  1557 ;  and  Philip  II  erected 
it  into  a  province  when  he  appointed  this  same  Fran- 
cisco Vazquez  as  Governor  and  Captain-General  by 
Royal  cedula  of  August  20,  1560. 

Ancient  Veragua  having  been  divided  into  two  parts 
by  the  Royal  cedula  of  March  2,  1537,  in  consequence 
of  the  creation  of  the  dukedom,  the  King  disposed  of 
the  remaining  part  by  giving  it  to  Diego  Gutierrez  in 
the  capitulacion  and  Royal  cedula  of  November  29, 
1540;  that  instrument  fixed  as  the  eastern  boundary 
the  meridian  that  passed  along  the  end  of  the  twenty- 
live  leagues  of  the  dukedom,  starting  from  the  meridian 
of  the  Belen  river.  If  Colombia  denies  this  Royal 
cedula  and  goes  back  to  that  of  1537,  she  must  recog- 
nize that  the  remaining  part  to  which  this  latter  re- 
ferred was  the  demarcation  given  by  capitulacion  to 
Felipe  Gutierrez  in  1534  and  then  existing;  according 
to  this  demarcation  the  territory  that  later  was  to 
become  Costa  Rica,  reached  as  far  as  the  limits  of  Cas- 
tilla  del  Oro,  which  had  been  given  to  Pedrarias  Davila 


106 

and  Pedro  de  los  Ri'os,  subject  to  tlie  rights  of  Co 
lumbus. 

The  personal  rights  of  Diego  Gutierrez  in  the  capit- 
ulacion  of  1540  having  been  extinguished,  the  explora- 
tion and  settlement  of  Costa  Rica  was  made  by  order 
of  the  King  ivitltout  capitidaciones,  but  under  the  com- 
mission given  to  Ortiz  de  Elgueta ;  and  the  province  of 
that  name  was  constituted  in  the  form  of  a  government 
and  captaincy-general  when  Vazquez  de  Coronado  was 
appointed  to  iill  those  offices  in  1565.  The  capitulacion 
of  Artieda,  of  December  1, 1573,  separated  the  northern 
part,  with  which  the  Province  of  Teguzgalpa  was 
foniied  later  on  by  the  capiiidacion  of  Diego  Lopez  of 
]57(),  and  it  left  the  Province  of  Costa  Rica  definitively 
bounded. 

It  is  important  to  note  that  the  capitulaciones  of 
Diego  Gutierrez,  of  1540,  and  of  Artieda,  of  1573,  were 
approved  directly  by  the  King  in  Royal  cedulas  and  by 
accord  with  the  Council  of  the  Indies,  thus  combining 
all  the  reqtiisites  which  the  Recopilacion  de  Indias  de- 
mands for  their  validity  and  continuance  in  force. 

It  cannot  be  said  that  these  capitidaciones  expired 
with  the  death  of  the  persons  with  whom  they  were 
made,  for  the  demarcations  made  by  the  King  always 
remained  and  the  boundaries  fixed  by  them  were  those 
that  limited  the  jurisdiction  of  the  governors  who  wer^ 
afterw^ards  appointed,  those  preserved  by  the  superior 
authorities  in  maintaining  such  governors  in  their 
rights,  and  those  sanctioned  by  use  and  custom — those 
in  fact  w^hich  the  Recopilacion  commands  to  be  re- 
spected and  kept,  as  stated  in  Law  1,  title  1,  book  V 
(Doc.  No.  131). 

For  the  reasons  above  stated,  in  all  the  boundary 
questions    of    the    Spanish-American    Republics,    the 


107 

value  of  (-apitulaciones  has  been  recognized  as  decisive 
of  territorial  divisions;  the  extinction  of  the  riprhts  of 
the  holders  produced  no  effects  on  those  divisions. 
This  has  been  demonstrated  in  the  controversies  and 
litigations  between  Colombia  and  Venezuela,  Peru  and 
Bolivia,  Peru  and  Ecuador,  Chile  and  Argentina,  Ar- 
gentina and  Brazil,  etc. 

In  the  boundary  question  between  Honduras  and 
Nicaragua,  which  was  decided  by  the  King  of  Spain  in 
1906,  the  very  same  counsel  who  defended  Colombia^ 
against  Costa  Rica  not  only  recognized  the  value  of 
capitula clones,  but  they  invoked  those  here  cited  in 
sup])ort  of  the  rights  they  were  then  defending,  as  we 
have  heretofore  stated;  Sefior  Maura  for  instance,  said 
in  defense  of  Nicaragua^  that  the  Diego  Gutierrez  ca- 
pifulacion  of  1540  defined  the  eastern  limit  of  Honduras 
and  that  the  Artieda  capitulacidn  of  1573  clearly  dis- 
tinguished Costa  Rica  from  Nicaragua;  and  Sefior  Sil- 
vela,  in  defending  Honduras,  asserted  that  this  capitu- 
lacion  with  Artieda  definitively  fixed  the  ijmitr  of 
Costa  Rica. 

4.  Unilateral  Acts  of  the  Crown  in  the  Unquestionable 
Exercise  of  Sovereignty,  and  Titles  of  the  Gover- 
nors; Final  Deductions. 

Although  the  Royal  cedulas  approving  the  capitu- 
laciones  were  acts  of  pure  sovereignty,  as  we  have  dem- 
onstrated, it  is  important  to  remember  that  the  Crown 
constituted  the  Provinces  of  Veragua  and  Costa 
Rica  by  unilateral  acts  of  imquestionable  sovereign 
power. 

Philip  II.  by  himself  and  without  contracting  with 
anyone,  marked  out  the  Province  of  Costa  Rica  in  the 


108 

directions  given  by  Royal  cedulas  of  December  13, 
1559,  and  February  23,  1560,  to  Ortiz  de  Elgueta,  who 
\^'as  to  explore,  settle  and  govern  it;  and  he  trans- 
mitted this  commission  to  the  Licentiate  Cavallon  in 
the  sam<.'  terms  by  Royal  cedula  of  February  28,  1561, 
in  which  ho  charged  the  Audiencia  of  the  Confines  that, 
if  Cavallon  did  not  accept,  it  should  appoint  a  judge  or 
some  other  person  to  carry  it  out.  The  boundaries 
given  to  Ortiz  de  Elgueta  and  to  Cavallon  were  the 
same  as  those  stated  in  the  appointment  of  Vazquez 
de  Coronado  as  Governor  of  Costa  Rica  by  Royal 
cedula  of  August  7,  1565. 

Colombia  will  not  be  able  to  deny  that  these  Royal 
cedulas  were  unilateral  acts  of  the  Crown,  expressions 
of  the  purest  sovereignty;  indeed,  were  they  preferred 
to  the  capitulacion  of  Artioda  it  becomes  evident  that 
Costa  Rica  could  be  understood  as  reaching  as  far  as 
the  cities  of  Nombre  de  Dios  and  Panama. 

The  Royal  cedulas  in  which  audiencias  were  created 
and  suppres=;od,  in  which  Costa  Rico  was  declared  to 
be  included  in  the  Audiencia  of  the  Confines,  or  Guate- 
mala, and  by  which,  through  that  audiencia,  questions 
were  determined  relating  to  its  administration — all 
these  wero  also  acts  involving  the  unquestionable  ex- 
ercise of  sovereignty;  and  particularly  in  that  category 
were  the  cedulas  making  appointments  of  governors. 

The  titles  issued  to  governors  arc  of  very  great  im- 
portance in  this  connection,  and  for  two  reasons:  as 
Royal  cf'dulas  confiiTnatory  of  the  demarcation  made 
in  the  capitulacioncs,  and  as  means  of  proof  expressly 
recognized  by  the  BecopUacion  in  the  matter  of  bound- 
aries. 

Let  us  renipmber  that  under  Law  1,  title  1,  book  V, 
the  audiencias,  governors  and  other  authorities,  must 


109 

keep  the  boundaries  of  their  jurisdictions,  "as  they 
may  be  fixed  by  Laws  of  this  Book,  the  Titles  of  their 
ofTRces,  etc.,"  the  Titles  of  the  Offices  taking  therefore 
the  first  place,  as  matter  of  proof,  immediately  after 
the  laws;  and  we  will  now  enumerate  the  titles  of  the 
offices  of  the  Government  of  Costa  Eica,  from  the  time 
that  the  distinction  was  initiated  in  Veragua  (Royal 
and  Ducal),  confining  ourselves  simply  to  the  princi- 
pal ones  and  their  enumeration  only,  since  their  history 
has  been  fully  written. 

1.  Title  of  Governor  granted  to  Felipe  Gutierrez, 
by  Royal  cedula  of  February  6,  1536  (Doc.  No.  9)  in 
consequence  of  the  approval  of  his  copitnlacion  of 
1534;  by  that  instrument  there  was  placed  under  his 
administration  the  whole  territory,  subject  to  the 
rights  of  Columbus,  as  far  as  Castilla  del  Oro,  the 
boundaries  of  which  were  those  assigned  to  Pedrarias 
Davila  and  Pedro  de  los  Rios. 

2.  Title  of  Governor  granted  to  Diego  Gutierrez,  by 
Royal  cedula  of  December  16,  1540  (Doc.  No.  19),  in 
consequence  of  the  approval  of  his  capitulacion  of 
November  29,  giving  him  the  administration  of  the 
Province  of  Cartago,  from  the  Rio  Grande  west  of 
Cape  Camaron  as  far  as  the  limit  of  the  dukedom, 
where  terminate  the  twenty-five  leagues  granted  to 
Columbus,  starting  from  the  meridian  of  the  Belen 
river. 

3.  Royal  cedulas  of  January  11,  1541  (Doc.  No.  20), 
directing  that  these  limits  be  respected  and  observed 
by  all  the  governors  of  the  Indies. 

4.  Title  of  Governor  granted  to  Juan  Vazquez  de 
Coronado,  by  Royal  cedula  of  April  8,  1565  (Doc.  No. 
52),  without  capitulacion,  giving  to  him  the  administra- 


no 

tion  of  the  Province  and  territory  of  Costa  Rica,  with 
all  its  jurisdiction . 

5.  Royal  Cedula  of  August  7,  1565  (Doc.  No.  54), 
directed  to  the  same  Vazquez  de  Coronado,  Governor 
and  Adelantado  of  the  Province  of  Costa  Rica,  de- 
claring that  this  province  comprised  the  territory  from 
Honduras  and  Nicaragua  "  *  *  *  on  the  side  of  the 
cities  of  Nombre  de  Dios  and  Panama,  Ijetween  the 
South  Sea  and  that  of  the  North,"  in  the  same  terms 
in  which  the  demarcation  assigned  to  Ortiz  de  Elgueta 
was  fixed, 

6.  Title  of  Governor  granted  to  Perafan  de  Ribera. 
by  Royal  cedula  of  July  19,  1566  (Doc.  No.  56),  with- 
out capitulacion,  giving  to  him  the  administration  of 
the  Province  of  Costa  Rica,  "  *  *  *  in  the  matters 
which  it  has  been  customary  for  the  Governors  who 
have  been  up  to  this  time  in  the  said  province  to  con- 
duct." 

7.  Title  of  Governor  and  Captain-General  granted 
to  Diego  de  Artieda,  by  Royal  cedula  of  February  18, 
1574  (Doc.  No.  63),  in  conformity  with  that  of  De- 
cember 1,  1573,  approving  his  capitulacion  and  giving 
to  him  the  Government  and  Captaincy-General  of  the 
Province  of  Costa  Rica,  which  it  says  extends  from 
the  Desaguadero  as  far  as  the  Province  of  Veragua, 
including  in  Costa  Rica  the  Valleys  of  Cliiriqui  on  the 
south  and  the  Bocas  del  Drago  on  the  north.  The 
latter  denomination  em})raced  the  Bay  of  Almirante 
and  the  Lagoon  of  Chiriqui,  in  which  region  he  was 
directed  to  establish  a  city;  this  he  did,  giving  to  the 
city  the  name  of  Artieda. 

8.  Royal  cedula  of  December  29,  1593  (Doc.  No.  70), 
giving  the  government  of  the  Province  of  Costa  Rica, 


ni 

with   rapiiularion,  to     Don     FerrJMinlo    (Ic     la    Cuova. 
"*     *      *   as  it  was  held  by  I)ie<ro  d^  ArtiocJa  ChiriTio, " 

TIk'  province  having  heeu  boimded  <l<'finitively  by 
the  Royal  cedulas  of  1573  and  1574,  the  appointments 
of  governors  subsequent  to  Artieda  and  (hieva  were 
confeired  with  like  jurisdiction.  We  have  seen  bow 
the  Audieneia  of  (juatemala  filled  those  offices  ad  in- 
terim and  now  we  will  add  that  the  Crown  continued 
to  exercise  its  rights  to  appoint  their  proprietors. 

In  fact,  after  Cueva,  the  Crown  did  appoint,  as  Gov- 
ernors and  Captains-General  of  this  Province  of  Costa 
Rica,  Juan  de  Ocon  y  Trillo,  in  1603;  Juan  de  Men- 
doza,  in  1W2;  Alonso  del  Castillo,  in  1618;  Juan  de 
Echauz,  in  1622;  Juan  de  Villalta,  in  1629;  Gregorio 
de  Sandoval,  in  1634;  Juan  de  Chaves,  in  1644;  Juan 
Fernandez  Salinas,  in  1650;  Andres  Arias  Maldonado, 
in  1655;  Juan  Lopez  de  la  Flor,  in  1663;  Juan  Fran- 
cisco Saenz,  in  1673,  and  Miguel  Gomez  de  Lara,  on 
August  7,  1680 — that  is,  two  months  after  the  Royal 
cedula  which  sanctioned  the  Recopilacion  (May  18, 
1680). 

In  the  titles  of  these  appointments  no  boundaries 
were  assigned  to  these  Governors  and  Captains-Gen 
era!  of  Costa  Rica  that  were  distinct  from  those  estab- 
lished by  the  demarcation  of  Artieda.  And  if  the 
Monarch  who  published  the  Recopilacion  de  Imlias 
recognized  in  that  code  the  existence  of  the  Govern- 
ment and  Captaincy-General  of  Costa  Rica  and  di- 
rected that  the  boundaries  stated  in  the  Titles  of  the 
Governors  must  be  respected,  is  the  same  one  who 
a])pointed  Governors  and  Captains-General  of  Costa 
Rica  (Saenz  and  Lara),  before  and  after  sanctioning 
it,  without  modifying  the  traditional  boundaries  clearly 


112 

estahlislu'd  in  prior  titles,  counsel  for  rolomliia  show 
inueh  temerity  in  disregarding  not  only  the  boundaries 
mentioned,  but  the  very  existence  even  of  that  prov- 
ince. 

Let  us  conclude,  then,  by  affirming  that  the  Recopi- 
laciov  de  ludins  respected  and  confirmed  the  existence 
of  the  Province  of  Costa  Rica,  with  the  demarcation 
established  by  the  Royal  codulas  of  December  1,  1573, 
and  February  18,  1574. 


113 


PART  THIRD 

Cotta  Rica  Continued  in  the  Same  Legal  Status 
of  Dif f erentation  From  Veragua  From  the  Recopila- 
cion  Down  to  the  Independence. 

SUMMARY. 

I.  From  the  Recopilacion  (1680)  to  1803. 

1.  Creation  of  the  Viceroyalty  of  Santa  Fe  and  Vi- 

cissitudes of  the  Audiencia  of  Panama,  Un- 
til Its  Suppression  (1717  to  1751). 

2.  The  Province  of  Veragua  Passed  Into  Depend- 

ence Upon  the  Viceroyalty  and  Audiencia  of 
Santa  Pe;  Costa  Rica  Continued  Dependent 
Upon  the  Audiencia  of  Guatemala  of  the 
Viceroyalty  of  Mexico. 

3.  The  Crown  Continued  to  Appoint  Governors  and 

Captains-General  of  the  Province  of  Costa 
Rica. 

4.  Boundaries  of  the  Viceroyalty  of  Santa  Fe  With 

Costa  Rica  as  a  Province  of  the  Audiencia 
of  Guatemala  and  Bordering  Thereon: 

(a)  Antecedents; 

(b)  Description  of  the  Kingdom  of  Tierra  Firme 

by  the  Comandante  general  of  Panama,  Don 
Antonio  Guill,  in  1760; 

(c)  Description  of  the  Viceroyalty  of  Santa  Fe  by 

its  Viceroy,  the  Marquis  de  la  Vega  de 
Armijo,  in  1772; 


114 

(d)  Report   of   thc^    Governor   of    V'eragua,    Don 

FeJix  Francisco  Bejarano,  in  1775; 

(e)  Description  of  the  Viceroj-alty  of  Santa  Fe, 

of  Tiorra   Firme  and  of  Veragiia,  by  the 
Missionary   Sobreviela,   in   1796; 

(f )  Official  Communication  of  the  (xovemor  of  the 

Islands    of    San     Andres,    in    1802;    and 
Resume. 

II.  The  Royal  Order  of  November  20,  1803,  Referring 

to  the  Mosquito  Coast. 

1.  Antecedents,  Formation  and  Text  of  the  Order. 

2.  That  Order  Was  Not  Appiiciible  to  Costa  Rica. 

Because   \\'hat   Was   Called   the  Mosquito 
Coast  Ended  Before  That  Province  Began. 

3.  Militar}^  and  Transitoi  y  Character  of  This  Royal 

Order. 

4.  The  Order  Could  Not  Change  the  l^aws  of  Terri- 

torial Division. 

5.  The   Inefficacy   and   Abrogations   of   This    Royal 

Order. 

III.  Last  Years  of  the  Spanish  Sovereignty. 

1.  First   Period   of  the    Constitutional     Regime    in 
Spain ; 

(a)  General   Organic  Provisions; 

(b)  Continuation  of  the  Dependency  of  the  North- 

ern (^oast  of  Costa  Rica  Upon  the  Govern- 
ment of  That  Province ; 

(c)  Description  of  the  Province  of  Costa  Rica  in 

the  Proposal   Made  by  Its  Deputy  in   the 
Cortes  For  the  Creation  of  a  Bishopric. 


lis 

2.  Absolute  Government  of  Fernando  VII. 
8.  Second  Constitutional  Period. 

IV.     The  Independence  and  the  "Uti  Possidetis." 

1.  rndepeudence  of  tlio  Provinces  of  Guatemala  and 

of  New  Granada. 

2.  The  Principle  of  Colonial  ''Uti  Possidetis." 

3.  Application  of  This  Principle. 

I. 

FRQM  THE  RECOPILACION  (1680)  TO  1803. 

1.  Creation  of  the  Viceroyalty  of  Santa  Fe  and  Vicis- 
situdes of  the  Audiencia  of  Panama,  Until  Its  Sup- 
pression (1717  to  1751). 

In  the  XVIIIth  century  the  territorial  division  es- 
tablished by  the  Recopilacion  de  hidias  was  modified, 
by  the  creation  of  two  more  viceroyalties,  that  of  Santa 
Fe  and  that  of  Buenos  Aires. 

The  Viceroyalty  of  Santa  Fe,  or  of  New  Granada, 
was  created  by  decree  of  the  King-  and  Royal  cedula 
of  May  27,  1717  (Doc.  No.  155),  recasting  in  the  Audi- 
encia of  Santa  Fe  the  Audiencias  of  Panama  and  Quito, 
all  of  which  depended  upon  the  Viceroyalty  of  Peru, 
and  adding  the  Comandancia  of  Caracas,  which  be- 
longed to  the  Audiencia  of  Santo  Domingo.  There  was 
placed  at  the  head  of  this  new  circumscription  a  vice- 
roy, who  was  to  reside  in  the  city  of  Santa  Fe  and  who 
should  be  Governor,  Captain-General  and  President 
of  the  Audiencia  of  that  name,  *'*     *     *     in  the  same 


lib 

manner  as  are  those  oT  I'ti  u  and  New  Spain,  and  with 
the  same  powers." 

This  viceroyalty,  not  having  produced  the  results 
expected  of  it,  was  suppressed  a  few  years  later,  in 
1723,  and  the  Audiencia  of  Panama,  which  had  been 
suppressed  when  it  was  formed,  was  re-established  in 
the  latter  year. 

But  in  view  of  the  claims  of  New  Granada  and  of 
what  was  proposed  by  the  Council  of  the  Indies,  the 
King  provided  for  the  re-establishment  of  the  vice- 
royalty,  by  Royal  cedula  of  August  20,  1739  (Doc.  No. 
163),  which  reads  as  follows: 

"I  have  resolved  to  esta])lish  anew  the  Vice 
royalty  of  the  New  Kingdom  of  Granada  and 
have  appointed  therefoi-  the  Lieutenant-General 
Don  Sebastian  de  Eslava  *  *  »^  being  also 
President  of  my  Royal  Audiencia  of  the  city  of 
Santa  Fe  in  said  New  Kingdom  of  Granada  and 
Governor  and  Captain-General  of  the  jurisdic- 
tion thereof  and  provinces  that  have  been  added 
thereto,  which  are:  that  of  Panama  with  the  ter- 
ritory of  its  Captaincy-General  and  Audiencia, 
that  is  to  say  those  of  Portobelo,  Veragua  and 
Darien;  those  of  Choco,  Kingdom  of  Quito,  Po- 
payan  and  Guayaquil  *  *  *  ^he  Audiencias 
of  Panama  and  Quito  to  continue  and  subsist 
as  they  are,  with  the  same  subordination  and 
dependency  from  this  Viceroy  as  the  others  have 
that  are  subordinated  to  the  Viceroyalties  of 
Peru  and  Mexico,  with  regard  to  their  respec- 
tive  Viceroys." 

Within  the  new  viceroyalty  and  under  the  depend- 
ency of  its  viceroy,  he  established  three  Comandancias 
generales:  those  of  Panama,  Cartagena  and  Caracas, 


117 

The  Audiencia  of  Panama,  then,  passed  from  the 
Viceroyalty  of  Peru  to  that  of  Santa  Fe.  But  it  was 
suppressed  later  on,  by  the  Royal  cedula  of  July  17, 
1751  (Doc.  No.  168),  because  of  the  small  amount  of 
business  it  was  called  upon  to  transact,  the  many  con- 
flicts it  produced  and  the  decadence  of  its  provinces. 
The  Kinf?  directed  that  all  the  political  and  military 
matters  of  the  City  of  Panama  and  Kini^dom  of  Tierra 
Firmo  should  be  left  in  charge  of  a  i^ovenior  and  lieu- 
tenant-general ''upon  the  same  footing  as  the  Gover- 
nors of  Cartagena  and  Veracruz  serve,"  under  the 
jurisdiction  of  the  Audiencia  of  Santa  Fe. 

2.  The  Province  of  Veragua  Passed  Into  Dependence 
Upon  the  Viceroyalty  and  Audiencia  of  Santa  Fe; 
Costa  Rica  Continued  Dependent  Upon  the  Au- 
dencia  of  Guatemala  of  the  Viceroyalty  of  Mexico. 

The  Viceroyalty  of  Santa  Fe  having  been  created 
and  the  Audiencia  of  Panama  suppressed,  the  Province 
of  Veragua  passed,  together  with  that  of  Tierra  Firme, 
Portobelo  and  Darien,  as  the  said  Royal  cedula  of  1739 
expressly  states,  into  dependence  upon  the  Viceroyalty 
and  Audiencia  of  Santa  Fe,  or  upon  the  New  Kingdom 
of  Granada,  and  so  remained  until  the  independence. 

On  the  other  hand  the  Province  of  Costa  Rica,  which, 
from  the  creation  of  the  Audiencia  of  the  Confines,  or 
Guatemala,  formed  part  of  it,  continued  to  depend 
upon  the  Audiencia  and  Captaincy-General  of  Guate- 
mala, of  the  Viceroyalty  of  New  Spain  (Mexico),  until 
its  colonial  emancipation. 

This  is  clearly  shown  by  the  fact  that  the  Audiencia 
of  Guatemala  continued,  as  it    did    before    the    Re- 


118 

copilacion  de  Indias,  to  act,  in  all  the  affairs  of  Costa 
Rica,  as  the  superior  of  its  governors  and  to  receive 
the  communications  and  orders  of  the  King  for  their 
discharge,  as  appears  from  the  numerous  cases  cited 
in  the  documents  submitted  in  this  litigation. 

And  this  ig  corroborated  by  the  fact  that  the  Andi- 
encia  of  Guatemala  constantly  filled  the  offices  of  gov- 
ernor and  captain-general  of  Costa  Rica,  ad  inierim, 
until  the  Crown  made  the  api)ointments.  It  was  in 
this  temporary  fashion  that  the  Audiencia  of  Guate- 
mala appointed,  as  Governors  and  Captains-General 
of  Costa  Rica,  Diego  de  Herrera  Campuzano  (1704), 
Jose  Antonio  Lacayo  de  Briones  (1712),  Pedro  Ruiz 
de  Bustamente  (1716),  Francisco  Carrandi  (1736), 
Francisco  de  Olaechea  (1730),  Luis  Di'ez  Navarro 
(1747),  Francisco  Fernandez  de  la  Pastora  (1754), 
Jose  Gonzalez  Rancano  (1757),  Francisco  Javier  de 
Oriamuno  (1763),  Juan  Flores  (1781),  Jose  Antonio 
Oriamuno  and  Juan  Martinez  de  Pinillos   (1789). 

3.     The  Crown  Continued  to  Appoint  Governors  and 
Captains-General  of  the  Province  of  Costa  Rica. 

Charles  II  who,  before  the  publication  of  the  Recopi- 
lar'wn.  appointed  Juan  Francisco  Saenz  as  Governor 
and  Captain-General  of  Costa  Rica,  and  Miguel  Gomez 
de  Lara  after  he  gave  his  royal  sanction  to  that  code, 
appointed  two  others:  Manuel  de  Bustamente  (1692) 
and  Francisco  Serrano  de  Reiua  (1695),  fully  demon- 
strating, therefore,  that  in  his  compilation  of  laws,  he 
had  not  intended  to  suppress,  nor  liad  he  suppressed, 
the  Province  of  Costa  Rica. 

His  successors  continued  to  fill  those  offices  in  pro- 
prietorship, as  appears  by  the  appointments  of  Lo- 


119 

reiizo  Antonio  de  Granda  (1703),  Diego  de  la  Hay  a 
Fernandez  (1718),  Baltasar  Francisco  de  Valderrania 
(1724),  Antonio  Vazquez  de  la  Cuadra  (1733).  ,hiau 
Gemmir  (1738),  Cristobal  Ignacio  de  Soria  (1748), 
Manuel  Soler  (1757),  Jose  de  Nava  (1765),  Juan  Fer- 
nandez de  Bobadilla  (1771),  Jose  Perie  (1777),  Jose 
Vazquez  Tellez  (1789),  Tomas  de  Acosta  (1796),  Juan 
de  Dios  de  Ayala  (1810)  and  Bernardo  Vallarino 
(1818). 

The  titles  of  these  governors  and  captains-goneral 
were  conferred  by  Royal  cedulas,  granting  to  them  the 
same  jurisdiction  that  their  predecessors  exercised, 
but  without  changing  the  boundaries  of  the  province. 

Senor  Maura  states  in  his  opinion  in  behalf  of  Co- 
lombia (page  23)  that  it  is  idle  to  give  any  attention 
to  the  period  subsequent  to  1680,  because  both  parties 
were  agreed  that  the  designation  of  the  frontier  dis- 
tricts of  the  Audiencias  of  Panama  and  Guatemala 
did  not  suffer  any  alteration  whatever  during  the  cen- 
turies that  followed. 


4.  Boundaries  of  the  Viceroyalty  of  Santa  Fe  With 
Costa  Rica  as  a  Province  of  the  Audiencia  of  Guate- 
mala and  Bordering  Thereon. 

After  the  Viceroyalty  of  Santa  Fe  was  created  and 
the  Audiencia  of  Panama  was  recast,  the  boundaries 
of  the  Province  of  Costa  Rica  continued  as  a  matter 
of  fact  to  be  the  same,  on  the  east,  as  they  were  be- 
fore; that  is,  as  separating  the  Audiencia  of  Guate- 
mala from  the  Audiencia  of  Panama,  a  dependency  of 
the  Audiencia  of  Peru. 


120 

(a)  Antecedents. 

We  have  already  seen,  in  treating  of  the  demarcation 
of  Artieda  of  1573,  how,  by  virtue  thereof,  there  was 
left  included  in  the  Province  of  Costa  Rica,  the  Valley 
of  Guaymi  on  the  north  and  within  the  limit  marked  by 
the  Escudo  de  Veragua,  and  the  Valleys  of  Chiriqui 
on  the  south. 

Dr.  Alonso  Criado  de  Castilla,  the  Senior  Judge 
of  the  Audiencia  of  Panajna,  on  May  7,  1575  (Doc.  No. 
64),  wrote  his  ''Description  of  the  Kingdom  of  Tierra 
Firme,  Which  is  Subject  to  the  Royal  Audiencia  ot 
Panama,"  in  which  he  told  the  King: 

"The  territorj'  that  is  settled  in  this  King- 
dom, as  far  as  the  jurisdiction  of  your  Royal 
Audiencia  of  Panama  extends,  is  eighty  leagues 
in  length,  that  is,  from  the  Gulf  of  San  Miguel 
as  far  as  Concepcion  de  Veragua;  and  twenty- 
four  in  wddth,  which  is  from  the  same  city  of 
Concepcion  to  Philipina." 

Regarding  the  Province  of  Veragua,  he  asserted  that 
it 

***  *  *  has  a  district  thirty  leagues  in 
length,  extending  from  the  said  city  of  Coyir- 
cepcion,  as  far  as  the  village  of  Mariato,  and 
in  width  twenty  leagues  in  its  greatest  extent, 
which  is  from  the  river  Calobre  as  far  as  the 
said  city  of  Concepcion. ' ' 

According  to  this  description  of  the  Audiencia  of 
Panama,  the  demarcation  of  Artieda  was  located  out- 
side of  it.  In  order  to  decide  the  conflict,  which  had 
arisen  between  the  latter  and  the  Governor  of  Veragua 
in  regard  to  the  settlements  Artieda  had  been  planning 


121 

to  make  tb(3  King,  by  Royal  cedula  of  August  30, 
1576  (Doc.  No.  66),  entrusted  to  tlie  Audiencia  of 
Guatemala  the  duty  of  determining  upon  which  side 
those  establishments  were  going  to  lie  since  they  should 
have  been  dependencies  of  the  governor  to  whom  the 
Guaymi  river,  the  Bay  of  Almirante  and  Bocas  del 
Drago  belonged  as  the  boundaries  of  his  government. 
And,  indeed,  Artieda  founded  the  city  of  his  name  in 
1577,  and  took  possession  of  the  Valley  of  Guaymi  in 
1578  (Doc.  Nos.  67  and  68). 

The  President  of  the  Audiencia  of  Guatemala  and 
the  Judge  Inspector  (Juez  Visitador)  of  Costa  Rica 
issued  a  commission,  in  1591  (Doc.  No.  78),  to  Captain 
Cabral,  in  the  execution  of  which  he  travelled  over  all 
of  Bocas  del  Drago  and  the  Bays  of  Almirante ;  and 

a*  *  *  having  entered  the  Guaymi  river, 
he  traversed  with  the  soldiers  the  whole  of  the 
isthmus  of  land  which  lies  from  the  North  Sea 
to  the  South  Sea  and  came  out  to  the  savannas 
of  Chiriqui." 

We  have  seen,  also,  how  in  1605,  Sojo,  the  deputy 
of  Ocon  y  Trillo,  Governor  of  Costa  Rica,  founded  the 
city  of  Santiago  de  Talamanca,  the  territory  of  which 
was  marked  out  as  far  as  the  line  of  the  Escudo  de 
Veragua,  the  end  of  the  Government  of  Costa  Rica. 
Dr.  Alonso  Criado  de  Castilla,  who  knew  so  well  the 
Audiencia  of  Panama,  was  then  President  of  the  Audi- 
encia of  Guatemala  and  in  his  letter  to  the  King  of 
November  30,  1608  (Doc.  No.  74),  he  speaks  of  the 
territory  of  the  Bay  of  Almirante  as  belonging  to 
Costa  Rica,  "*  *  *  which  borders  upon  that  of 
Veragua  belonging  to  the  district  of  the  Royal  Audi 
encia  of  Panama,"  and  he  makes  allusion  to  the  con- 


122 

quest  of  Talamanca  and  the  boundaries  of  the  Valley 
of  Duy. 

During  the  XVIIth  century  the  governors  of  Costa 
Rica  and  the  Audiencia  of  Guatemala  made  great  ef- 
forts to  subdue  the  Indians  of  Talamanca,  and  the  King 
approved  the  undertakings  that  were  carried  on,  and 
even  bestowed  special  rewards  on  their  leaders  (Doc. 
Nos.  77,  78,  80,  81,  82,  83,  84,  85,  86,  87,  88,  89,  90,  137, 
138,  139,  153,  161,  237,  238  and  239).  The  mission- 
aries worked  admirably  in  the  XVIIIth  century  to 
pacify  and  reduce  the  Indians  of  Talamanca,  the  mis- 
sions having  their  headquarters  in  Guatemala,  the 
audiencia  of  which,  and  the  Province  of  Costa  Rica, 
helped  them  so  far  as  they  were  able  by  supplying  them 
with  necessities  and  protecting  them  with  military 
escorts  (Doc.  Nos.  140,  142,  143,  144,  145,  147,  149,  152, 
153, 158, 164, 170, 172, 175, 178,  217  and  240). 

On  the  southern  side  of  the  Province  of  Costa  Rica, 
the  Valleys  of  Chiriqui,  expressly  embraced  in  the  de- 
marcation of  Artieda,  were  always  a  border  region 
with  the  Province  of  Veragua,  although  by  toleration 
they  did  not  remain  wholly  within  the  former,  for  the 
Chiriqui  Vie  jo  river  was  considered  as  the  division- 
ary line.  At  that  river  was  fixed  the  boundary  of  the 
Corregimiento  of  Quepo  and  Boruca,  to  which  the 
Royal  cedulas  of  April  28,  1709  (Doc.  No.  146),  Sep- 
tember 1,  1713  (Doc.  No.  152),  and  May  24,  1740  (Doc. 
No.  164),  refer. 

Such  was  the  state  of  things  when  the  Viceroyalty 
of  Santa  Fe  was  created;  but  by  its  creation  the  Audi 
encia  of  Guatemala  suffered  no  change  whatever  in 
its  boundaries,  because  all  action  in  the  matter  of  that 
audiencia  was  reduced  to  the  effort  to  preserve  its 
contiguitv  with  the  Audiencia   of  Panama,  although 


12.^ 

dependent  upon  the  new  viceroyalty  instead  of  the 
Vicero3^alty  of  Peru;  and  when  that  audiencia  (of 
Panama)  was  suppressed  and  its  jurisdiction  merged 
in  the  Viceroyalty  of  Santa  Fe,  in  which  it  was  recast, 
there  was  no  variation  in  the  boundaries  of  Costa  Rioa. 

But  it  is  very  interesting  to  follow  the  descriptions 
of  the  Viceroyalty  of  Santa  Fe,  because  in  stating  its 
boundaries  with  that  of  New  Spain  and  the  Audiencia 
of  Guatemala,  those  of  Costa  Rica  are  confirmed,  and 
as  a  province  Costa  Rica  remained  dependent  upon  the 
latter  down  to  the  end  of  the  colonial  epoch  as  has 
been  demonstrated, 

(6)  Description  of  the  Kingdom  of  Tierra  Firme  by 
the  Comandante  General  of  Panama,  Don  Antonio 
Guill,  in  1760. 

The  Audiencia  of  Panama  having  been  suppressed 
in  1751,  and  its  government  converted  into  the  Coman- 
dancia  general  of  Tierra  Firme,  it  was  directed  by 
Royal  order  of  May  1,  1758,  that  a  description  should 
be  made  of  it;  this  was  done  by  Don  Antonio  Guill  y 
Gonzaga,  who  was  then  the  Comandante  general,  in  a 
report  addressed  from  Panama,  September  30,  1760 
(Doc.  No.  171),  to  the  Minister  of  the  Indies. 

According  to  that  description,  the  Government  of 
Tierra  Firme,  was  composed,  in  176*0,  of  Darien,  Pan- 
ama, Portobelo  and  Veragua.  The  Province  of  Ver- 
agua  was  ruled  by  a  governor,  who  had  under  his 
orders  the  sub-governors  or  deputies  of  Nuestra 
Senora  de  los  Remedies  and  of  Santiago  al  Angel 
(Alanje),  or  Chiriqui.  The  last  settlement  of  the  Prov- 
ince of  Veragua,  on  this  side,  was  Bugaba,  to  the  east 


124 

of  Chiriqiii  Viejo  river  and  distant,  two  leagues  from 
the  frontier  of  Costa  Rica. 

(c)  Description  of  the  Viceroy alty  of  Santa  Fe,  by  Its 
Viceroy,  the  Marquis  de  la  Vega  de  Armijo,  iii  177'^. 

In  the  Description  and  Status  of  the  Viceroyalty  of 
Santa  Fe,  by  its  Viceroy,  the  Marquis  de  la  Vega  de 
Armijo,  written  by  Dr.  Moreno  y  Escandon,  Fiscal 
Protector  of  the  Indians,  in  1772  (Doc.  No.  174),  it  is 
stated  that  this  viceroyalty  borders  on  that  of  Mexico 
by  Costa  Rica,  ''and  being  divided  from  the  Audiencia 
of  Guatemala  there  is  left  for  its  district,  that  of  the 
Province  of  Alanje  and  Veragua,  all  the  South  Coast, 
from  the  Bay  of  Chiriqui  (or  of  David)  by  that  of 
Guayaquil  to  near  Cape  Blanco    *    *    *." 

The  description  goes  on  to  treat  of  the  country  to 
the  north,  east  and  south  down  to  when  it  says : 
II*  *  *  until  by  Portolielo  and  the  Government  of 
the  Province  of  Veragua  it  closes  the  boundary  upon 
the  Audiencia  of  Guatemala  and  Viceroyalty  of  New 
Spain    *    *    *." 

(d)  Report  of  the  Governor  of  Veragua,  Don  Felix 

Francisco  Bejarano,  in  1775. 

The  Governor  of  Veragua,  Don  Felix  Francisco  Bej- 
arano, at  the  request  of  Guatemala,  reported  in  1775 
(Doc.  No.  175),  that  the  end  of  Veragua  reached  as 
far  as  the  frontier  of  Talamanca,  which  is  left  in  Costa 
Rica,  and  therefore  with  its  Bay  of  the  Almirante 
(Bocas  del  Toro)  and  its  Islands  of  Tojar,  or  Colon, 
etc. 


125 

(e)  Description  of  the  Viceroy alty  of  Santa  Fe,  of 
Tierra  Firme  and  of  Veragtia,  by  the  Missionary 
Sobreviela,  in  1796. 

In  th<3  most  interesting  work  of  Fray  Manuel  So- 
breviela, Missionary  of  Ocopa,  entitled:  ''Description, 
Historic-Geographical,  Political,  Ecclesiastical  and 
Military,  of  Southern  America,"  (Lima,  1796;  Doc. 
No.  181),  the  Viceroyalty  of  Santa  Fe  is  first  described 
generally,  by  the  statement  that  it  embraces 

a*  *  «  fj.Q^  ^jjg  River  Chiriqui,  of  the  King- 
dom of  Tierra  Firme,  which  is  the  dividing  line 
of  this  Viceroyalty  and  of  the  two  Americas  by 
the  District  of  Costa  Rica,  of  the  Province  of 
Guatemala,  as  far  as  the  neighborhood  of  the 
Gulf  of  Maracaibo." 

It  then  takes  up  the  Kingdom  of  Tierra  Firme,  and 
says  that  it 

if  *  *  is  bounded  on  the  East  by  the  Prov- 
ince of  Cartagena,  from  which  it  is  separated 
by  the  River  San  Juan;  on  the  West  by  the 
River  Chiriqui,  which  serves  as  the  boundary 
of  the  Province  of  Costa  Rica,  in  the  Kingdom 
of  Guatemala;  on  the  North  by  the  North  Sea 
and  on  the  South  by  the  Pacific.  It  is  two  hun- 
dred leagues  in  length  from  East  to  West;  that 
is,  from  the  River  Atrato  or  Gulf  of  Darien,  as 
far  as  the  River  Chiriqui  (Viejo,  or  old,  of 
South),  and  eighty  in  width  from  North  to 
South,  at  the  widest  part,  which  is  from  the  port 
or  bay  of  IMnriato  to  the  point  of  the  bay  or  port 
of  the  River  Chagres.  This  Kingdom  is  divided 
into  three  provinces,  which  are  Panama,  Ver- 
aguas  and  Darien." 


126 
Continuing:  it  takes  up  Veragua: 

*'It  is  bounded  on  the  North  by  the  North  Sea ; 
on  the  South  by  the  Pacific  Ocean;  on  the  East 
by  the  Province  of  Panama,  and  on  the  West  by 
the  River  Chiriqui,  which  divides  it  from 
Costa  Rica  and  Kingdom  of  Guatemala.  It  is 
sixty  leagues  from  East  to  West,  from  the  city 
of  Nata  to  the  village  of  Chiriqui  and  eighty  in 
width  from  the  Cape  of  Conejos  on  the  South 
Sea  to  the  extreme  of  the  Escudo  de  Veraguas 
in  the  North  Sea." 

And  in  describing  the  principal  rivers  of  the  Prov- 
inces of  the  Kingdom  of  Tierra  Firme,  it  says : 

"The  first  is  the  River  Chiriqui,  which  rises 
in  the  mountains  in  the  South  part  of  the  Prov- 
ince of  Veragua  and  empties  into  the  South  Sea 
or  Pacific  (Gulf  of  Chiriqui  or  Sinus  Chiri- 
quensis  of  the  Map  of  the  Jesuits  Brentano  and 
La  Torre).  It  serves  as  boundary  to  this  prov- 
ince and  to  all  Southern  America  which  it  sepa 
rates  from  the  Northern  and  from  the  District 
of  Costa  Rica  in  the  Kingdom  of  Guatemala." 

It  is  thus  seen  that  the  description  is  complete  and 
agrees  perfectly  with  the  antecedents  we  have  set  forth. 

(/)    Official  Communication  of  the  Governor  of  the 
Islands  of  San  Andres,  in  1802;  and  Resume. 

In  concluding,  let  us  add  that  the  Escudo  de  Ver 
agua  was  even  recognized  as  a  border  point  by  the 
Governor  of  the  Islands  of  San  Andres,  Don  Tomas 
O'Neille,  of  whom  we  shall  speak  hereafter  as  the  in- 
stigator of  the  Royal  order  of  1803,  which,  according 
to  Colombia,  incorporated  Costa  Rica  in  the  Viceroy- 
alty  of  Santa  Fe. 


127 

O'Neille,  addressing  himself  to  the  President  of 
Guatemala,  in  an  official  communication  of  October 
22,  1802  (Doc.  No.  184)  said: 

'*If  Your  Worship  will  be  pleased  to  write 
to  said  Chief  (the  Viceroy  of  Santa  Fe),  and 
get  from  him  a  frequent  visit  of  the  vessels  of 
the  King  in  these  waters,  for  they  only  go  as 
far  as  the  ESCUDO  DE  VERAGUA,  tvhich 
is  the  limit  of  the  demarcation  between  the  two 
Kingdoms,  it  would  avoid  great  injury  to  the 
State,  etc.    *    *    *." 

To  recapitulate:  the  boundaries  of  the  Viceroyalty 
of  Santa  Fe  with  the  Audiencia  of  Guatemala  at  the 
beginning  of  the  XlXth  century  were :  on  the  north  the 
line  extending  from  the  Escudo  de  Veragua  which 
corresponds  to  the  Chiriqui  (not  Viejo,  or  old),  or 
Culebra,  or  Calobebora  river  (by  which  various  names 
it  is  called) ;  and  on  the  south  the  Chiriqui  Viejo  river. 
And,  therefore,  those  were  also  the  boundaries  of  Costa 
Rica,  the  last  province  of  the  Audiencia  of  Guatemala, 
bordering  on  that  Viceroyalty. 

II. 

THE  ROYAL  ORDER  OF  NOVEMBER  20,  1803,  RE- 
FERRING TO  THE  MOSQUITO  COAST. 

1.    Antecedents,  Formation  and  Text  of  the  Order. 

From  the  time  of  the  conquest  of  Jamaica,  the  Eng- 
lish never  ceased  their  encroachments  upon  the  Islands 
of  San  Andres  and  the  Mosquito  Coast,  which  acts 
became  a  source  of  continuous  conflicts;  to  this,  how- 
ever, the  Treaty  of  London,  of  July  14,  1786  (Doc.  No. 
176),  sought  to  put  an  end  by  agreeing  that  the  Eng- 


128 

lisb  should  ovaeuntc  the  placos  wliore  tliey  had  estab- 
lished themselves. 

Those  islands  of  San  Andres  (embracing  under  that 
appellation  those  of  San  Andres,  Santa  Catalina  and 
Providencia),  were  the  subject  of  serious  attention  by 
the  Spanish  rulers,  nearly  all  of  their  inhabitants  hav- 
ing been  English  and  the  islands  themselves  centres  of 
smuggling  and  of  forays  upon  the  Mosquito  Coast. 

Don  Tomas  O'Neille,  a  captain  of  infantry  who  had 
been  in  the  military  service  of  the  Viceroyalty  of  Santa 
Fe,  w^as  commissioned,  in  1789,  to  visit  those  islands, 
where  he  became  intimate  in  friendship  and  business 
with  the  Taylor  brothers  who  exercised  great  influence 
there.  The  Taylor  brothers,  in  1794,  through  the  Vice- 
roy of  Santa  Fe,  applied  to  the  King  asking  that  the 
English  might  be  allowed  to  continue  in  the  islands, 
that  a  governor  be  appointed  (whose  salary  they  would 
pay),  and  that  Don  Tomas  O'Neille  be  named  as  such 
governor. 

Lieutenant  Don  Jose  del  Rio  of  the  Navy  who  also 
visited  those  islands  by  order  of  the  King,  gave  His 
Majesty  a  very  minute  account  of  them  in  his  extended 
report  from  Trujillo,  dated  August  23,  1793  (Doc.  No. 
179) ;  in  this  he  advised  that  the  islands  be  abandoned 
and  that  with  their  settlers  an  establishment  be  made 
at  Bluefields  on  the  Mosquito  Coast. 

By  Royal  order  of  November  6,  1795  (Doc.  No.  180), 
it  was  provided  that  "for  the  present"  the  English 
should  not  be  compelled  to  evacuate  the  Island  of  San 
Andres  and  establish  themselves  at  Bluefields;  that  this 
might  be  accomplished  later,  on  a  suitable  occasion, 
and  that  Don  Tomas  O'Neille  should  be  Governor  **dc 
pendent  upon  your  Captaincy-General  (of  Guate- 
mala)." 


129 

Scarcely  had  he  taken  possession  of  his  office  when 
he  fell  out  with  the  Captain-General  of  Guatemala, 
who  ordered  him  to  leave  the  islands  until  the  conclu- 
sion of  peace  with  England,  and  assigned  him  to  vari- 
ous military  duties  in  Nicaragua.  Having  had  occa- 
sion to  go  back  to  the  islands,  he  petitioned  that  there 
should  be  conferred  upon  him  the  political  and  mili- 
tary command  of  the  establishments  of  Trujillo,  Cape 
Gracias  a  Dios  and  San  Juan  de  Nicaragua,  with  a 
salary  of  3,000  pesos,  and  other  extraordinary  condi- 
tions, all  of  which  the  Captain-General  of  Guatemala 
refused. 

Once  back  at  San  Andres  he  undertook  to  free  its 
government  from  that  of  Guatemala,  to  this  end  mak- 
ing use  of  his  friends,  the  Taylors,  and  counting  upon 
the  support  of  his  protectors  in  Santa  Fe. 

Under  date  of  December  5,  1802  (Doc.  No.  185), 
O'Neille  addressed  himself  to  the  Minister  of  War, 
sending  him  two  statements,  one  from  the  Alcalde, 
Juan  Taylor,  of  November  25  (Doc.  No.  187),  and  the 
other  his  own,  of  December  4  (Doc.  No.  186),  in  which 
he  asked  for  the  aggregation  of  those  islands  of  the 
Mosquito  Coast  to  the  Viceroyalty  of  Santa  Fe;  these 
statements  he  forwarded  through  that  viceroyalty  in- 
stead of  the  Captain-General  of  Guatemala — because 
of  the  difference  in  distance,  he  said. 

Both  statements  went  to  the  Board  of  Fortifications 
and  Defense  of  the  Indies  which,  on  September  2, 
1803  (Doc.  No.  189),  reported  favorably  thereon,  add- 
ing that  it  would  be  desirable  to  follow  the  same  course 
with  regard  to  the  establishments  of  Cape  Gracias  a 
Dios  and  the  Bay  of  Bluefields  on  the  desert  Mosquito 
Coast.  The  record  in  the  case  was  returned  to  the 
Board  on  the  23rd  of  the  same  month,  and  its  attention 
called  to  the  fact  that  if  this  plan  were  carried  out  it 


1.^0 

would  leave  Guatemala  unclei'euded  ou  the  Atlantic 
side.  'Hie  Board  insisted,  in  its  second  report  of  Oc- 
tober 21st  (Doe.  No.  190),  confining  itself  to  the  state- 
ment that  the  segregation  woukl  not  be  injurious  to 
Guatemahi,  siuee  the  Mosquito  Coast  was  a  wiideruess. 
In  accord  with  these  reports  it  was  determined  to  issue 
the  lioyal  order  whii-h  Don  Miguel  Cayetauo  Soler, 
acting  as  Minister  of  \Var,  communicated,  on  Nov^em- 
l>er  20,  1803,  to  the  Captain-General  of  Guatc^mala. 
This  same  Minister  in  another  conmiunication,  trans- 
mitted the  order  t;)  the  Viceroy  of  Santa  Fe,  and  this 
communication  is  the  one  that  was  invoked  l)y  (^olom- 
})ia;  it  reads  as  follows: 

**San  LorcMizo,  Xovem!)or  oO,  1803. 
''Most  Excellent  Sir: 

"Don  Jose  Antonio  Caballero,  in  a  letter  of 
the  20th  instant,  writes  to  me,  as  follows: 

"  'The  King  has  resolved  that  the  Islands  of 
San  Andres  and  the  part  of  the  Moscpiito  C^oast 
from  Cape  (iracias  a  Dios.  iuclusive,  toward  the 
liiver  (yhagres,  shall  ite  segregated  from  the 
Captaincy-General  of  Guatemala  and  be  depend- 
ent upon  the  Viceroyalty  of  Santa  Fe.  And  His 
Majesty  has  been  pleased  to  grant  to  the  Gover- 
nor of  the  said  islands,  Don  Tomas  O'Neille, 
the  salary  of  2,000  pesos  fiicrtcs,  instead  of  the 
1,500  which  he  at  present  enjoys.  By  Royal 
Order  I  inform  Your  Excellency  that  the  Min- 
istry in  your  charge  should  take  the  necessary 
steps  for  the  fulfillment  of  this  sovereign  man- 
date;' all  of  which  T  state  to  you  by  His  Maj- 
esty's command,  for  its  due  execution. 

"May  God  keep  Your  Excellency  many  years. 

"SOLER." 
"To  the  Viceroy  of  Santa  Fe." 


131 


That  Order  Was  Not  Applicable  to  Costa  Rica,  Be- 
cause What  Was  Called  the  Mosquito  Coast  Ended 
Before  That  Province  Beffan. 


The  importance  attributed  by  Colouibia  to  this  Royal 
order  is  very  great,  for  she  assmnes  that  it  incor 
f)orated  into  the  Viceroyalty  of  Santa  Fe  the  long 
stretch  of  territory  that  extended  from  Cape  Gracias 
a  Dios  as  far  as  the  Chagres  river,  within  which  ex- 
tension Costa  Rica  was  embraced.  That  is  to  say,  that 
just  as  Colombia  argued  that  "all  Veragua,  and  there- 
fore Costa  Rica,  belongs  to  Tierra  P^irme,"  now  she 
argues  that  "all  of  the  Mosquito  Coast  as  far  as  the 
Chagres  river,  and  therefore  Costa  Rica,  belongs  to 
the  Viceroyalty  of  Santa  Fe." 

But  this  Royal  order  was  nut  applicable  to  Costa 
Rica  for  tlio  very  simple  reason  that  it  referred  only 
to  the  Mosquito  Coast  which  ended  on  the  south  before 
that  province  began. 

The  origin  of  the  name  and  the  extent  of  the  Mos 
quito  Coast  are  clearly  shown  by  the  official  docmnents. 

The  BisJiup  o/  Nlcaragaa,  Fray  lieiiito  Garret,  in 
his  report  to  the  King  of  November  30,  1711  (Doc. 
No.  151),  relates  that  in  the  year  1641  a  vessel  laden 
with  negroes  was  wrecked  on  the  coast  that  extends 
from  Trujillo  as  far  as  the  mouth  of  the  San  Juan 
river;  tliat  these  negroes  were  forced  into  a  light  with 
the  Carib  Indians,  and  the  latter,  defeated,  withdrew 
through  the  mountains  towards  the  territories  ojf  Se- 
govia and  Chontales;  that  the  victors  took  to  them- 
selves the  women  of  defeated  Indians,  and  that  their 
descendants  were  called  "  Zamhos/'  the  issue  of  ne- 
groids and  Indians.     This  accords,  he  says,  with  the 


132 

account  giveu  by  a  negro,  named  Juan  Ramon,  "who 
lives  now  in  this  city  (Granada  de  Nicaragua)  and 
whose  advanced  age  accords  well  with  the  recollection 
which  he  asserts  tliat  he  has  of  the  facts  he  narrates." 
The  Bishop  coniphiined  to  the  King  of  the  lament- 
able ravages  and  captures  made  by  the  Zanibos  who 
occupied  the  locality  called  Puntagorda  and  the  said 
Mosquito  territory  which  is,  as  indicated  in  a  paren- 
thesis, the  ''sea  coast  from  the  mouth  of  the  River 
San  Juan  as  far  as  the  city  of  Trujillo  in  the  Province 
of  Honduras,"  the  longitude  of  which,  he  adds  fur- 
ther on,  would  ])e  about  sixty  leagues.  And  he  asks 
the  King  for  the  subjugation  of  the  Zavibos,  suggest- 
ing the  best  means  to  that  end. 

By  Royal  cedula  of  April  30,  1714  (Doc.  No.  154), 
the  King  directed  the  Captain-General  of  Guatemala 
to  undertake  the  conquest  of  the  Mosquitos,  he  ascribed 
their  origin  to  the  same  source  as  that  given  in  the 
Bishop's  account,  and  took  into  consideration  the  re- 
ports of  the  said  (uiptain-general  regarding  the  settle- 
ments of  the  Carib  Indians,  negroes  and  Zambos  in 
Mosquito  island,  on  the  side  of  the  Province  of  Nicar- 
agua; and  said  further  that  it  was  well  known  that 
they  were  on  the  coast  of  the  North  Sea,  spread  over 
an  area  of  fifty  to  sixty  leagues,  beginning  to  count 
at  twelve  leagues  from  the  San  Juan  river  up  to  twenty 
from  tlie  city  of  Trujillo;  that  Zambos  were  skillful 
in  the  handling  of  arms,  and  were  assisted  and  pro 
tocted  by  the  English  of  Jamaica,  with  whom  they 
carried  on  their  trade. 

The  attempt  to  subdue  the  Mosquitos  was  not  sue 
cessful.     These  people,  clever  in  the  nuinagement  of 
boats  and  even  the  firearms  with  which  they  were  sup- 
plied by  the  English,  made  continual  incursions  by 


133 

sea  and  land  upon  the  neighboring  settlements,  carry 
ing  with  them  desolation,  captivity  and  death.  As  the 
result  of  a  report  from  the  Captain-General  of  Guate- 
mala dated  May  10,  1737,  and  relating  to  a  treaty  of 
peace  proposed  by  {he  so-called  *'King"  of  the  Mos- 
quitos,  and  to  the  two  settlements  which  the  English 
had  begun  to  establish  on  that  coast,  the  Council  of 
the  Indies  rendered  an  opinion  setting  forth  the  means 
for  subduing  the  Mosquitos  and  avoiding  the  evils  of 
their  relations  with  the  English;  this  opinion  was  ap 
proved  by  the  King  in  the  Royal  cedula  of  August  8, 
1739  (Doc.  No.  162). 

In  tliat  Opinio7i  of  the  Council  of  the  Indies,  of  July 
8,  1739  (Doc.  No.  162),  the  following  appears: 

**  These  people  owe  their  appellation  and  ori- 
gin to  the  Island  of  Mosquitos,  where,  in  the 
year  1641,  there  arrived  a  vessel  laden  with 
negroes  (who  captured  the  Indians  in  order  to 
sell  them  as  slaves  and  kept  the  women  for  pur- 
poses of  procreation)  *  *  *.  According  to 
reports  from  the  President  and  others,  they  oc- 
cupy at  the  present  time  more  than  sixty  leagues 
of  land  extending  from  the  jurisdiction  of  Co- 
mayagua  (Honduras)  as  far  as  that  of  Costa 
Rica  of  the  dominions  of  Your  Majesty  adjoin 
ing  the  coast  of  the  North  Sea,  their  territory- 
being  in  width  only  three  leagues  of  productive 
and  habitable  land  extending  up  to  the  slope  of 
the  mountains  that  separate  them  from  the  do- 
minions of  Your  Majesty  *  *  *.  In  those 
sixty  leagues  they  have  established  for  their 
dwellings  twenty-four  settlements  or  hamlets 
*  *  * ;  by  the  last  and  most  reliable  news  that 
has  been  received,  the  Mosquitos  number  2,000 
men  who  bear  arms.  They  also  have  among 
them  Spaniards,  French,  English,  apostate  In- 
dians and  fugitive  slaves,  their  territory  being 


134 

a  general  asylum  for  all  the  scoundrels  who  flee 
from  justice  *  *  *.  The  care  of  the  Council 
is  growing  on  account  of  these  enemies,  because 
they  are  found  to  have  considerably  increased; 
and  not  only  have  they  a  chief  *  *  *,  but  they 
have  the  boldness  to  call  him  a  King  and  demand 
that  Your  Majesty  shall  recognize  him  as  such 
in  a  treaty  of  peace  and  commerce,  which  un- 
heard of,  insolent  audacity  leads  us  to  suspect 
that  it  does  not  come  from  them  alone.  This 
presumption  becomes  probable  *  *  *  when 
it  is  noted  that  these  barbarous  Mosquitos  are 
intimate  and  in  league  with  the  English  of  Ja- 
maica, of  New  England,  etc.    *    *    *." 

The  Captain-General  of  Guatemala,  Don  Pedro  de 
Rivera,  in  a  report  of  November  23,  1742  (Doc.  No. 
166),  addressed  to  the  King  in  response  to  his  order, 
concerning  the  measures  for  the  expulsion  of  the  Mos- 
quitos, says  of  them : 

**At  a  short  distance  from  Cape  Gracias  a 
Dios,  which  is  on  the  coast  of  the  Province  of 
Comayagua,  there  is  a  small  island  named  Mos 
quitos,  in  which,  in  the  year  1650  (acc^ording  lo 
tradition)  a  vessel  was  wrecked  which  carried 
negroes  under  the  charge  of  Lorenzo  Gramalxo, 
of  the  Portuguese  nation    *     *     *;  they  inter 
bred  with  the  Indians,  and  produced  the  Zam 
bos,  under  the  designation  of  "Mosquitos/'  de 
rived  from  the  island  upon  which  the  negroes 
were  shipwrecked,  and  this  is  the  distinctive  ap- 
pellation by  which  they  are  known,  and   this 
name  applies  to  all  those  that  dwell  with  them, 
they   being   the   heathen   Indians   that   inhabit 
those  territories,  the  mulattoes  and  negroes  who 
have  left  the  dominions  of  His  Majesty  in  order 
to  enjoy  the  free  life  without  any  subjection 
*    *    *.    The  English  who  live  among  the  Zam 
bos  are  most  degraded    *    *    * ;  the  Zambos  are 


135 

so  far  subordinate  to  the  English  nation  that 
they  obey  its  orders  as  if  they  were  under  its 
sovereignty,  and  the  one  that  they  have  among 
them  under  the  title  of  King  is  invested  with  it 
by  the  Governor  of  Jamaica." 

The  Captain-General  of  Guatemala  enumerates 
twenty-seven  hamlets  which  the  Zambos  occupied  at 
that  time  and  which  lay  generally  along  *'the  rivers 
which  are  to  be  found  between  the  two  Provinces  of 
Honduras  and  Costa  Rica,"  also  mentioned  by  him. 
And  be  describes  the  Island  of  San  Andres,  on  which 
lived  the  Zambos  "in  conjunction  with  the  English," 
situated  thirty  leagues  from  that  coast. 

It  results  from  these  official  documents  that  the  evi- 
dence is  clear  that  it  was  the  Mosquito  Coast  that  was 
occupied  by  this  little  race  of  Zambos,  which  sprang 
from  the  union  of  the  negroes  who  came  to  the  Island 
of  Mosquitos  and  the  Carib  Indians  located  in  the 
Province  of  Nicaragua,  between  the  Provinces  of  Hon- 
duras and  Costa  Rica.  Its  length  is  fixed  at  sixty 
leagues. 

The  Columbian  publicist  and  statesman,  Don  Pedro 
Fernandez  Madrid,  claims,  like  the  majority  of  English 
geographers,  that  the  Mosquito  Coast  begins  at  Cape 
Honduras,  but  he  says  that  it  ends  at  Punta  Gorda, 
near  the  most  northern  arm  of  the  San  Juan  river  of 
Nicaragua.  The  Bishop  of  Nicaragua  counts  the  sixty 
leagues  from  the  mouth  of  the  San  Juan  river  to  the 
city  of  Trujillo,  indicating  Punta  Gorda  as  the  last 
point  in  the  south  occupied  by  the  Zambos,  from 
whence  they  make  their  raids.  The  Royal  cedula  of 
1714  begins  to  count  the  fifty  or  sixty  leagues,  which 
it  says  this  coast  has,  at  twelve  leagues  to  the  north 


136 

of  the  San  Juan  river  up  to  twenty  from  the  city  of 
Trujillo.  The  Council  of  the  Indies,  in  its  opinion  of 
1739,  starts  from  the  end  of  Comayagua ;  according  to 
this  the  sixty  leagues  of  which  it  speaks  begin  at  Cape 
Gracias  a  Dios  and  end  in  the  centre  of  the  lagoon  of 
Bluefields. 

It  must  be  remembered  that  the  Province  of  Costa 
Rica  ended  on  the  north  at  the  Desaguadero,  or  San 
Juan  river,  and  that  this  boundary  is  found  some  ten 
leagues  beyond  Punta  Gorda,  twenty  from  Bluefields 
and  eighty  from  Cape  Gracias  a  Dios.  Therefore  Costa 
Rica  was  not  embraced  in  the  Mosquito  Coast . 

It  is  true  that  Costa  Rica  reached  as  far  as  Cape 
Gracias  a  Dios  and  even  Cape  Camaron  in  the  early 
times,  still  it  did  not  extend  beyond  the  Desaguadero, 
or  San  Juan  river,  after  it  was  definitively  bounded, 
in  1573,  with  the  Artieda's  Government.  The  portion 
segregated  from  Costa  Rica  in  that  year,  is  that  with 
which,  in  1576,  the  Province  of  Teguzgalpa  was  formed, 
and  that  which  corresponds  to  the  Mosquito  Coast. 
This  northern  portion  was  divided  between  Honduras 
and  Nicaragua,  by  Royal  cedulas  of  August  23,  1745, 
establishing  as  the  divisionary  point  Cape  Gracias  4 
Dios,  which  is  the  point  that  was  fixed  as  the  boundary 
between  the  present  republics  of  those  names  by  the 
award  of  the  King  of  Spain  hereinbefore  cited. 

Because  the  Royal  order  of  1803  says :  ''  *  *  *  the 
Islands  of  San  Andres  and  the  part  of  the  Mosquito 
coast  from  Cape  Gracias  a  Dios,  inclusive,  toward  the 
River  Chagres,  shall  })e  segregated,  etc.,"  Colombia 
claims  that  Costa  Rica  was  also  segregated,  since 
it  lay  that  side  of  the  Chagres  river.  But  the 
Royal  order  does  not  say  hasta  (to,  or  as  far  as)  but 
hacia  (toward)  the  Chagres  river,  and  consequently 


137 

this  river  does  not  mark  the  boundary,  but  only  indi- 
cates the  direction.  Lot  us  remember  the  laws  of  the 
demarcation  of  audiencias  and  the  numerous  Royal 
orders  which  we  have  cited,  and  it  \\dll  be  seen  tliat 
whenever  it  was  desired  to  indicate  a  boundary,  the 
word  naturally  employed  was  "hasta"  (to,  or  as  far 
as) ;  whereas,  when  it  was  desired  to  indicate  direction 
the  word  used  was  ''hacia"  (toward)  or  "a  la  parte 
de"  (on  the  side  of).  These  latter  words  are  more  ex- 
pressive, for  instance,  when,  in  the  demarcation  of  the 
Province  of  Costa  Rica  assigned  to  Ortiz  de  Elgueta, 
Cavallon  and  Vazquez  de  Coronado,  it  says  from  Hon- 
duras and  Nicaragua  *' a  la  parte  de  (on  the  side  of) 
the  cities  of  Nombre  de  Dios  and  of  Panama";  and 
yet  Colombia  will  not  acknowledge  that  this  signified 
that  the  Province  Costa  Rica  should  have  reached  as 
far  as  the  line  determined  by  those  two  cities.  Nor  can 
Colombia  be  understood  as  meaning  to  say  that  the 
territory  incorporated  in  the  Viceroyalty  of  Santa  Fe 
was  that  which  reached  as  far  as  the  Chagres  river, 
next  to  Portobelo,  since  Portobelo  and  the  Province 
of  Veragua  already  belonged  to  it. 

If  the  reports  of  the  Board  of  Fortifications  (Doc. 
Nos.  189  and  190),  by  virtue  of  which  the  Royal  order 
of  1803  was  issued  are  read,  it  will  be  seen  that  they 
do  not  refer  to  the  whole  of  the  Mosquito  Coast,  but 
only  to  the  establishments  of  Cape  Gracias  a  Dios  and 
Bay  of  Bluefields.  When,  by  virtue  of  the  Treaty  of 
London,  of  1786  (Doc.  No.  176),  the  English  evacu- 
ated the  Mosquito  Coast,  four  settlements  or  estab- 
lishments of  Spaniards  were  directed  to  be  created 
therein ;  and  it  was  especially  in  order  to  protect  these 
establishments  that  that  Royal  order  was  issued.  If 
it  says  the  part  of  the  Mosquito  Coast  from  Cape 


13K 

Gracias  a  Dios  towards  the  Chagres  river,  it  is  in 
order  that  it  should  not  be  understood  as  meaning 
from  Cape  Graeias  ji  Dios  in  the  direction  of  Honduras, 
but  towards  the  south,  and  as  far  as  those  establish- 
ments, which  had  as  their  maximum  limit  the  Desa 
guadero  or  San  Juan  river,  might  reach. 

3.    Military  and  Transitory  Character  of  That  Royal 

Order. 

Even  assuming  that  it  had  been  desired  to  include 
Costa  Rica  in  the  Royal  order  of  1803,  that  order 
lacked  the  force  to  change  the  legal  status  of  the 
province  as  to  administrative  dependency  and  boun- 
daries, as  we  are  about  to  show;  and  as  such  a  hypo- 
thesis is  only  supported  by  the  words  ''toward  the 
River  Chagres,"  it  cannot  be  seriously  considered  as 
a  sufficient  basis  for  the  suppression  of  a  province  or 
its  transfer  from  one  viceroyalty  to  another  or  from 
one  audiencia  to  another. 

From  its  preparation  and  its  purpose  that  Royal 
order  can  only  be  characterized  as  a  military  order. 
It  was  issued  by  the  Minister  of  War,  as  a  result  of 
petitions  addressed  to  him,  and  the  approval  not  of 
the  Supreme  Council  of  the  Indies,  but  of  the  Board 
of  Fortifications  and  Defense  of  the  Indies;  and  it 
was  promulgated  by  the  same  ministry  to  the  military 
and  not  to  the  civil  authorities.  Its  purpose,  as  shown 
by  the  reports  of  that  Board  and  deduced  from  the 
history  that  has  been  given  of  the  Mosquitos,  allied 
with  the  English,  was  to  provide  a  better  defence  for 
the  Islands  of  San  Andres  and  the  Spanish  establish- 
ments on  the  Mosquito  Coast,  against  the  attacks  from 
the  Zamhos  and  English. 


139 

Responding  to  these  needs  for  protection,  and  also 
for  the  prevention  of  smuggling,  other  provisions  had 
been  previously  enacted  entrusting  the  guardianship 
of  these  coasts  to  the  neigliboring  governors  without 
any  idea  of  making  thereby  any  change  in  the  demar- 
cations of  their  respective  districts.  Thus,  we  see  the 
Royal  cedula  of  August  23, 1745  (Doc.  No.  167),  which 
appointed  the  Governor  of  Nicaragua,  Don  Alonso 
Feruan<lez  de  Heredia,  Corruindante  General  de  las 
Armas,  and  sought  to  prevent  illicit  commerce  through- 
out the  territory  embraced  between  Cape  Gracias  a 
Dios  and  the  Chagres  river;  the  Royal  order  of  Sep- 
tember 24,  1786  (Doc.  No.  177),  addressed  to  the  Cap- 
tain-General of  Guatemala,  in  which  he  is  informed 
that  the  Viceroys  of  Mexico  and  Santa  Fe  have  been 
directed  that  he  shall  be  given  whatever  he  asks  for  in 
order  to  facilitate  the  evacuation  of  the  Mosquito  ter- 
ritory; that  of  February  26,  1788,  to  the  Comandante 
de  Marina  of  Havana,  to  place  himself  at  the  orders 
of  the  Captain-General  of  Guatemala,  etc. 

Such  measures  were  merely  transitory  in  character, 
and  they  ceased  to  be  effective  when  there  came  a 
change  in  the  circumstances  or  personnel  which  had 
called  them  forth.  O'Neille  knew  how  to  take  advan- 
tage of  the  circumstances  in  which  those  islands,  and 
the  establislmaents  of  the  Mosquito  Coast,  were  placed 
by  the  orders  for  evacuation  given  to  the  English  and 
the  latent  state  of  war  with  England,  in  order  to  ad 
vance  his  personal  ambitions.  But  the  Royal  order 
of  1803  served  only  to  give  to  O'Neille  the  Govern- 
ment of  the  Island  of  San  Andres ;  this  he  surrendered 
to  the  English,  in  1806,  but  it  was  soon  afterwards 
restored  by  them  to  Spain. 


140 

4.     The  Order  Could  Not  Change  the  Laws  of  Terri- 
torial Division. 

If,  nevertheless,  the  Royal  order  of  November  20, 
1803,  be  considered  to  be  a  measure  not  military  and 
transitory  in  character,  but  rather  one  having,  as  Co- 
lombia claims,  the  capacity  of  a  legislative  mandate 
which  changed  territorial  division,  then,  the  question 
being  placed  on  this  ground,  we  are  impelled  to  as 
sert — and  most  positively — that  the  Royal  order  in 
question,  according  to  the  laws  of  the  Recopilacion 
de  Indias,  which  governed  when  it  was  issued  was  null 
and  void. 

Both  parties  are  in  accord  in  recognizing  that  the 
Recopilacion  de  Indias  gave  the  character  of  laws  to 
all  those  which  it  embraced  in  its  text,  and  commanded 
that  they  should  be  obeyed  and  complied  with  as  such, 
as  directed  by  the  Royal  cedula  of  May  18,  1680,  which 
sanctioned  it;  and  it  is  important  to  remember  what 
we  liave  heretofore  stated  in  regard  to  the  value  of 
those  laws  when  discussing  their  relations  to  the  Royal 
dispositions  prior  and  subsequent  to  the  publication 
of  that  code. 

Law  1,  title  1,  book  II  (Doc.  No.  92),  lays  down  the 
doctrine  that 

''*  *  *  those  only  (the  laws  of  the  i^ecopito- 
cion)  shall  have  the  force  of  law  and  pragmatic 
sanction^  in  that  which  they  decide  and  determine; 
and  if  it  should  be  desirable  that  others  be  made 
besides  those  contained  in  this  book,  let  the  Vice- 
roys, Presidents,  Audiencias,  Governors  and  Al- 
caldes mayores  advise  and  inform  us  as  to  the 

^  A  pragmatic  sanction  has  the  force  and  effect  of  a  solemn  ordinance 
or  decree  by  the  legislative  authority  of  the  State. 


141 

name  through  the  Council  of  the  Indies,  giving 
the  motives  and  reasons  why  tliey  are  submitted 
in  order  that,  being  understood,  sucli  resolution 
may  be  taken  as  is  most  desirable;  and  they  may 
be  added  in  a  separate  volume." 

Law  2,  title  2,  book  II  (Doc.  No.  94),  confers  on  the 
Council  of  the  Indies  supreme  jurisdiction  over  all  the 
Western  Indies,  and  empowers  that  body  to  **  order 
and  make,  with  our  advice  the  general  and  special 
Laws,  Pragmatics,  Ordinances  and  Provisioues. " 

Law  1,  title  15,  book  II  (Doc.  No.  105),  of  Philip  IV, 
declares  that  all  the  territory  that  is  discovered  in  the 
Indies  is  divided  into  audiencias,  wiiich  are  subordi- 
nate '**  *  *  to  our  ISupreme  Council  of  the  Indies, 
which  represents  our  Royal  Person" ;  and  it  commands 
that  the  audiencias  and  the  governments  shall  be  pre- 
served as  ''they  now"  are  in  the  district  of  each,  and 
that"*  *  *  no  change  shall  be  made  therein,  with- 
out our  express  order  or  that  of  our  said  Council." 

To  these  laws,  which  we  have  hereinbefore  cited, 
should  be  added  the  following,  from  title  2,  book  II,  in 
which  the  direction  is  confirmed  that  measures  of  a  leg- 
islative character  and,  in  general,  those  referring  to 
the  administration  of  the  Indies  must  be  passed  upon 
by  the  Supreme  Council  of  the  Indies,  which  council 
was  to  be  subject  to  a  fixed  procedure,  and  ciiarged 
wiih  the  execution  and  observance  of  those  laws. 

Law  6  (Doc.  No.  95)  charges  the  Council  of  the 
Indies  that  it  shall  always  have  a  description  and  full 
investigation  made  of  all  matters  concerning  the  con- 
ditions of  the  Indies  "*  *  *  which  may  become 
matters  for  the  administrative  or  legal  action."  And 
Law  12  (Doc.  No.  96)  reads: 


142 

"Thus  We  command,  that  whenever  those  of 
our  Council  of  the  Indies  may  have  to  provide 
and  direct  the  Laws  and  general  Provisions  for 
'  the  good  government  of  the  Indies,  they  may 
be  very  well  informed  and  sure  beforehand  of 
what  has  already  been  provided  in  the  matters 
in  question,  and  they  must  previously  acquire 
the  fullest  possible  information  and  notice  about 
the  things,  affairs  and  territories  concerned,  and 
hear  also  the  advice  of  those  who  govern  therein 
and  of  those  who  might  be  able  to  throw  any 
light  on  the  matters,  unless  delay  in  asking  for 
information  may  cause  detriment." 

Law  14  (Doc.  No.  97)  requires  that  the  Council  of 
the  Indies  shall  meet  in  full  membership  "*  *  *  for 
the  consideration  of  general  matters  of  government, 
such  as  making  Laws  and  pragmatics  and  the  inter- 
pretation of  derogation  thereof,  the  establishment  of 
audiencias,  erection  of  churches  and  dismemberment, 
division  and  union  thereof,  and  other  matters  which 
in  the  opinion  of  the  President  or  Governor  are  im- 
portant." And  not  only  this,  but  it  is  particularly 
provided  in  Law  15  (Doc.  No.  98),  that  two-thirds  of 
the  members  of  the  Council  "must  agree  in  an  opin- 
ion" whenever  there  shall  be  a  question  as  to  "making 
new  Laws  or  repealing  the  old  ones." 

Law  17  (Doc.  No.  99)  entrusts  to  the  Council  the 
execution  of  the  orders  of  the  King  for  better  pro- 
vision and  certainty;  Law  18  (Doc.  No.  100)  provides 
that  the  Council  shall  report  to  the  King  whenever  it 
may  receive  orders  of  doubtful  interpretation ;  Law  24 
(Doc.  No.  101)  charges  it  to  arrange  always  that  the 
new  laws  and  provisions  be  published  where  and  when 
it  may  be  best,  and  Law  25  (Doc  No.  102)  directs  it 
*'*    *     *     to  ascertain  and  understand  how  the  Laws 


143 

We  provide  and  order  are  being  obeyed  and  fulfilled ; 
and  that  they  severely  punish  according  to  law  those 
who  by  perversity  or  neglect  shall  not  comply  there- 
with or  execute  them." 

We  will  cite,  finally,  Law  23,  title  6,  book  II  (Doc. 
No.  104),  providing  that  the  provisions  and  despatches 
in  judicial  matters  between  parties,  which  are  issued 
by  the  Council  of  the  Indies,  shall  be  issued  in  the 
name  of  the  King,  without  the  formality  of  his  signa- 
nature;  but  that  all  other  matters  of  government, 
mercy  and  justice  arising  in  the  Indies  shall  he  con- 
sidered and  despatched  by  the  King,  as  had  been  done 
theretofore. 

All  of  these  laws  were  violated  by  tlie  Koyal  order 
of  November  20,  1803,  since  it  was  not  given  by  the 
King,  but  in  the  name  of  the  King — it  was  not  dic- 
tated in  consultation  with  the  Supreme  Council  of  the 
Indies,  but  upon  a  report  of  the  Board  of  Fortifica- 
tions ;  and  not  having  been  acted  upon  by  the  Council 
(to  which  was  entrusted  the  supreme  jurisdiction  in 
this  regard),  the  guaranties  were  left  unfulfilled  in 
respect  of  the  information  to  be  given  by  the  authori- 
ties interested,  the  full  quorum  and  the  minimum  of 
votes,  which  the  Recopilacion  required  in  order  to 
change  the  laws  of  the  Indies. 

And  as  it  was  not  the  intention  of  the  Govennnent  to 
make  a  law  which  hihouid  change  the  prior  laws  of 
territorial  division,  all  of  which  had  been  made  in 
the  Council  of  the  Indies,  but  simply  to  dictate  a  Royal 
order  of  ;i  ministerial  character,  the  order  was  signed 
**in  the  name  of  the  King,"  and  was  transmitted  by  the 
Secretaryship  of  the  Department  of  War,  in  order  to 
conform  to  military  convenience. 

Counsel  for  Colombia,  who  expend  so  much  effort 


144 

in  insisting  upon  legislative  acts  for  the  establishment 
of  territorial  division — to  the  extent,  even,  of  denying 
validity  to  the  Royal  deniarcatory  cedulas  that  ante- 
dated the  Recopilacion  de  Indias — deliberately  ignore 
that  code  in  order  to  give  legislative  force  to  the  Royal 
order  of  1803,  and  maintain  that  all  the  Royal  orders 
issued  by  the  absolute  Monarchy  had  the  same  legal 
force  as  the  laws  now  made  by  the  King  and  the  Cortes, 
in  the  Constitutional  Monarchy.  But  that  is  not 
correct. 

It  is  true  that  when  the  absolute  Monarchy  had  once 
been  consolidated  and  the  glorious  traditions  of  the 
Cortes  of  Castile  and  Aragon  had  been  lost,  the  will  of 
the  Monarch  was  law,  subject  to  no  external  limita 
tions;  hut  this  will  established  differences  with  regard 
to  the  exercise  of  power  and  limited  itself  by  dictating 
rules  of  a  general  character,  to  which  resolutions  had 
to  be  adjusted,  according  to  the  nature  of  the  particular 
cases. 

Although  the  division  of  powers  now  in  operation  did 
not  then  exist,  the  differences  between  the  function  of 
legislating  and  that  of  administering  could  not  have 
been  ignored;  neither  was  it  possible  for  the  King  to 
have  done  everything  by  himself.  Therefore  the  juris- 
diction was  divided  into  that  which  was  retained  and 
that  which  was  delegated,  accordingly  as  the  King 
reserved  to  himself  the  direct  exercise  of  that  Dower 
or  delegated  or  confided  it  to  the  councils,  ministers  or 
judges.  It  is  clear  that  the  King  did  exercise  the 
legislative  power,  by  himself  alone,  and  to  avoid  all 
doubt  as  to  the  authority  from  which  those  legislative 
acts  (jnanated,  they  must  have  been  headed  with  the 
name  of  the  King  and  borne  the  signature,  **I,  the 
King."    In  this  manner  the  resolutions  in  matters  of 


145 

government  and  administration  reserved  to  ttio  Mon 
arch  were  headed  and  signed.  Such  provisions  ema- 
nated directly  from  the  King,  and  were  called  prafj- 
matics  and  Royal  cedulas;  they  differed  essentially 
from  Royal  orders,  which  could  be  issued  in  his  name 
without  his  signature. 

Notwithstanding  the  delegation  of  power  to  the 
Council  of  the  Indies  was  so  ample,  the  Recopilacion 
established  the  rule  that  the  provisions  for  govern- 
ment, mercy  and  justice  for  the  Indies,  were  to  be 
issued  and  despatched  by  the  King,  as  he  had  been 
doing ;  that  is  to  say,  by  Royal  cedulas.  And  that  code, 
in  treating  of  the  territorial  division,  positively  pro- 
hibited any  alteration  be  made  thereof,  ''without  the 
express  order  of  the  King  or  of  the  Council  of  the 
Indies." 

So,  then,  the  Royal  order  of  November  20,  1803, 
which  was  not  a  Royal  cedula  enacted  by  the  King, 
but  a  ministerial  order  issued  **in  the  nauje  of  the 
King,"  without  the  advice  of  tlie  Council  of  the  Indies, 
and  as  the  concluding  act  of  an  administrative  pro- 
ceeding, almost  of  a  personal  character  (the  govern 
ment  of  Don  Tomas  O'Neille),  it  was  lacking  in  leg- 
islative force,  or  even  in  the  legal  value  of  a  decree  in 
a  matter  of  civil  demarcation  and  jurisdictional  fixing 
of  boundaries. 

The  authority  of  absolute  mouarchs,  as  in  every 
other  kind  of  government,  was  of  two  kinds:  discre- 
tionary and  regulated,  accordingly  as  it  was  directed  to 
matters  that  were  or  were  not  subject  to  pre-existing 
regulations.  The  monarch  was  under  no  compulsion  to 
issue  such  rules,  but  once  issued  lie  had  to  act  in  accord- 
ance therewith,  unless  he  modified  them  or  declared 


146 

exception  thereto.  The  Recopilacion  dc  Indias  estab- 
lished the  procedure  for  the  amendment  of  the  laws 
whirh  it  contained  and  for  the  adoption  of  new  laws, 
and  retjiiired  previous  information  to  be  given  to  the 
Council  of  the  Indies,  the  consideration  by  the  latter 
in  full  membership,  the  favorable  opinion  of  two-thirds 
of  the  voting  members  and  the  intervention  of  that 
Council  in  the  publication  and  execution  of  the  law. 
None  of  these  things  was  done  in  respect  of  the  Royal 
order  of  1803;  therefore,  it  could  not  have  the  char- 
acter of  a  law. 

Spanish  legislation  did  not  tolerate  such  transgres 
sions  of  legal  procedure.  It  declared  to  be  null  and 
void  all  dispositions  which  were  not  in  conformity  with 
legal  formalities,  or  which  might  be  contrary  to  pre- 
existing law  which  might  be  in  force.  Law  2,  title  4, 
book  III  of  the  Novisima  Recopilacion,  says : 

"Since  it  happens  that  by  importunity  of 
some  or  in  some  other  way  We  may  grant  and 
deliver  some  letters  or  Royal  patents  in  contra- 
vention of  right  or  contrary  to  law  or  statute 
in  force,  therefore  We  command  that  such  let- 
ters or  Royal  patents  shall  he  of  no  value  nor 
shall  they  be  complied  with,  although  they  may 
contain  the  provision  that  they  are  to  be  exe- 
cuted notwithstanding  any  statute  or  law  or 
ordinance  or  any  other  ab rogatory  clauses 
whatsoever. ' ' 

And  this  is  applicable  to  the  present  case,  not  only 
because  it  shows  that  the  general  system  of  Spain  in 
the  matter  of  legislation  was  not  one  of  despotism,  but 
also  for  the  reason  that  Law  2,  title  1,  book  II  (Doc. 
No.  93),  of  the  Recopilacion  de  Indias  directs  that  the 
legislation  of  Castile  shall  be  supplemental  thereto. 


147 

It  is  important,  also,  to  noto  that  the  laws  of  the 
Recopilacion  de  Indias  continued  in  force  in  tlie  Span- 
ish-American provinces  until  their  independence,  in 
so  far  as  they  may  not  have  been  moditied  by  subse- 
quent provisions  of  a  legislative  character;  and  the 
publications  of  that  code  which  wore  made  after  1680 
were  nothing  more  than  mere  new  editions  thereof. 
The  fact  is  that  the  Royal  order  of  November  20,  1803, 
does  not  figure  in  the  chronological  list  of  the  Royal 
cedulas.  Royal  orders  and  decrees  embraced  in  the 
notes  appended  to  tlie  Laws  of  the  Indies,  in  the  Fifth 
Edition  (1841),  approved  by  the  Court  of  the  Indies 
{Sala  de  Indias)  of  the  Supreme  Tribunal  and  the 
Regency  of  the  Kingdom,  which  we  have  before  us. 

We  will  say,  finally,  that  Colombia's  argument,  in 
support  of  the  legal  force  of  the  Royal  order  of  1803, 
based  as  it  is  on  the  fact  that  there  was  another  order 
of  like  character  issued  July  15,  1802,  relating  to  the 
segregating  of  the  Government  and  Comandancia. 
General  of  Maynas  from  the  Viceroyalty  of  Santa  Fe 
and  its  aggregation  to  that  of  Peru,  proves  quite  the 
contrary  from  what  Colombia  desires  to  prove  and  it 
constitutes  the  best  possible  confirmation  of  the  doc- 
trine which  we  have  stated. 

It  was  not  by  a  Royal  order,  dictated  in  the  name  of 
the  Bang,  but  by  the  Royal  ccdula  of  July  15,  1802 
(Doc.  No.  183),  by  the  King  himself,  speaking  in  his 
own  name,  issued  to  the  viceroys  affected  thereby,  that 
the  Government  and  Comandancia  General  of  Maynas 
was  created ;  it  was  formed  out  of  territory  which  was 
minutely  marked  out,  segregated  from  the  Viceroyalty 
of  Santfi  Fe  and  incoi*porated  into  that  of  Peru.  It 
was  the  result  of  protracted  proceedings  that  extended 
over  a  period  of  twenty-five  years,  initiated  by  Don 


148 

Francisco  Requeua,  Royal  Commissioner  of  Bounda 
ries,  who  administered  that  territory  for  a  long  time. 
It  was  pursued  from  the  very  beginning  before  the 
Council  of  the  Indies  which,  after  the  fullest  informa- 
tion from  the  viceroys  and  audiencias  interested,  and 
in  conformity  with  the  opinions  of  the  Fiscales  (Attor- 
neys General)  of  Peru  and  New  Spain  and  of  the 
Contaduria  General  (General  Financial  Office),  agreed 
in  full  membership  to  suggest  this  change  in  an  opinion 
to  the  King.  The  Royal  cedula  approving  it  was  com- 
municated, as  was  provided  therein,  to  the  Viceroys  of 
Peru  and  New  Granada,  to  the  President  of  the  Au- 
diencia  of  Quito,  to  the  Archbishop  of  Lima  and  to 
the  Bishops  of  Quito  and  of  Trujillo;  all  obeyed  and 
complied  with  it.  And  besides  it  was  proclaimed  from 
town  to  town.^ 

This  was  the  legal  course  to  be  pursued,  and  the 
course  which  would  have  been  pursued  had  it  been  de- 
sired, by  the  issuance  of  the  Royal  order  of  1803,  to 
change  the  demarcation  of  the  Viceroyalties  of  Santa 
Fe  and  New  Spain  and  the  jurisdictional  limits  of 
their  respective  audiencias  and  governments. 

5.    The  IneflBcacy  and  Abrogation  of  This  Royal  Order. 

Furthermore,  the  Royal  order  of  November  20, 1803, 
called  that  of  *'San  Lorenzo,"  fell  morally  still-born; 
no  one  took  any  notice  of  it,  and  it  was  contradicted  by 

(i)  This  Royal  cedula  of  1802,  relating  to  the  Government  of 
Maynas,  is  discussed  at  length  in  the  work  written  by  one  of  the 
counsel  herein.  See  "A  Study  of  the  Question  of  Boundaries 
between  the  Republics  of  Peru  and  Ecuador"  (Estudio  de  la  cues- 
tion  de  limites  entre  las  Rcpublicas  del  Peru  y  del  Ecuador),  Madrid, 
1907.  Translated  into  English  by  Harry  Weston  Van  Dyke,  Wash- 
ington, 1910. 


149 

numerous  provisions,  which  proceeded  in  every  case  as 
though  it  had  never  existed. 

As  soon  as  the  Brigadier,  Don  Roque  Abarca,  In 
spector  of  Militia  of  the  Captaincy-General  of  Guate 
mala,  received  knowledge  of  this  Royal  order,  he  sent 
a  communication  (Doc.  No.  194)  to  the  Captain-General 
and  President  of  the  Audiencia,  Don  Antonio  Gonzalez, 
setting  forth  the  great  injuries  that  would  result  from 
its  execution,  and  showing  that  even  were  it  to  be  in- 
sisted upon,  it  was  undesirable  in  every  way  to  confide 
its  execution  to  O'Neille.  The  President,  Gonzalez, 
forwarded  these  observations  to  the  Minister  of  War, 
in  the  despatch  of  June  3, 1804  (Doc.  No.  195),  making 
them  his  own  and  stating  that  they  were  in  accord  with 
his  information  and  the  documents  which  he  had  before 
him. 

The  Brigadier  Abarca  declared  that  O'Neille 's  sole 
purpose  was  to  carry  on  contraband  trade  on  a  large 
scale,  as  he  already  had  been  doing  (or  protecting  it) 
with  Jamaica;  that  for  this  purpose  he  falsified  the 
facts  and  contradicted  what  he  had  said  in  writing; 
that  the  accepted  plan  of  O'Neille  was  the  very  same 
which  he  had  proposed  to  them,  the  captain-general 
and  himself,  and  which  they  had  rejected  with  indigna- 
tion; that  the  plan  conceived  by  O'Neille  was  imprac- 
ticable and  its  realization  could  only  be  considered  as 
the  work  of  a  crazy  person,  or  of  expert  smugglers; 
and  that  the  plan  which  ought  to  be  pursued  for  the 
colonization  of  the  Mosquito  Coast  was  another  and 
very  different  one,  the  one  which  he  advised — slow 
but  sure. 

So  energetic  an  attack  by  the  Captain-General  of 
Guatemala  took  away  all  the  moral  authority  of  the 
Royal  order  of  1803,  and  left  it  but  a  dead  letter. 


150 

The  Captain-General  of  Guatemala  kept  right  on 
acting  in  the  matters  relating  to  the  Mosquito  Coast, 
as  is  proved  by  numerous  documents  and  especially  by 
the  Royal  order  of  November  13,  1806  (Doc.  No.  197). 
That  official  had  applied  to  the  Secretaryship  of  State 
and  War  (Doc.  No.  193),  in  a  complaint  against  the 
Intendant  of  Comayagua  (Honduras),  who  claimed  to 
have  the  administration  of  the  establishments  of  the 
Mosquito  Coast,  saying  that  they  had  "always  de- 
pended immediately  upon  this  Captaincy-General," 
and  the  Royal  order  says: 

"The  King  having  been  informed  by  the  let- 
ters of  Your  Worship  *  *  *  ^nd  by  the 
documents  accompanying  them  *  *  *  jjiy 
Majesty  has  resolved  that  Your  Worship  is  the 
one  who  must  have  sole  charge  and  the  absolute 
cognizance  of  all  the  affairs  that  arise  in  the 
Colony  of  Trujillo  and  other  military  posts  of 
the  Coast  of  Mosquitos,  relating  to  the  four 
mnttors  referred  to  (Justice,  Police,  Finance 
and  War),  in  compliance  with  the  Royal  Orders 
issued  since  the  year  17(J2,  ■.vliicb  authorized  yoa 
to  occupy,  defend  and  settle  that  Coast,  until 
that  object  being  in  whole  or  in  part  secured, 
His  Majesty  may  deem  it  suitable  to  change  the 
actual  system     *     *     **' 

So  that,  even  supposing  that  the  Royal  order  of 
1803  ever  had  any  legal  value  and  could  have  been  put 
into  practice,  it  was  abrogated  by  this  order  of  180G 
which  retained  the  Mosquito  Coast  under  the  depend- 
ency of  Guatemala,  in  the  four  departments  of  Justice, 
Police,  Finance  and  War. 

By  Royal  order  of  March  31,  1808  (Doc.  No.  198), 
addressed  to  the  Captain-General  of  Guatemala  in  re- 
ply to  his  communications  of  January  3  and  June  18, 


151 

1805,  it  was  provided  that  the  San  Juan  river  of  Nica- 
ragua should  remain  open  to  navigation  and  commerce, 
that,  in  order  to  promote  the  clearing  and  cultivation 
of  the  immediate  lands  the  same  favors  were  granted 
to  their  inhabitants  that  were  conceded  to  the  new 
settlers  of  the  Mosquito  Coast  by  the  Royal  order  of 
November  20,  1803  (a  different  order  from  that  of  the 
same  date  which  is  invoked  by  Colombia  (Doc.  No. 
474) ;  that,  for  a  period  of  ten  years  there  was  to  be 
exemption  from  duties  and  tithes  on  the  products  that 
might  be  hars^ested  within  a  distance  of  ten  leagues 
from  the  river,  on  either  bank  thereof;  and  that  the 
establishment  of  a  settlement  should  be  undertaken 
near  the  said  San  Juan  de  Nicaragua  river.  Those  ten 
leagues  of  the  coast  to  the  north  lay  in  what  was  called 
the  Mosquito  Coast ;  and  the  ten  on  the  soutli  belonged 
to  Costa  Rica.  This  Royal  order  of  1808  proves,  there 
fore,  that  the  jurisdiction  of  the  Captaincy-General  of 
Guatemala  continued  upon  the  Mosquito  Coast,  at  the 
mouth  of  the  San  Juan  river,  and  also  in  Costa  Rica, 
and  that  the  Royal  order  of  1803,  did  not  operate 
against  this  jurisdiction. 

The  Valley  and  Coast  of  Matina,  which  Colombia 
claims  as  embraced  within  the  Mosquito  Coast,  con- 
tinued under  the  cemmand  of  the  Governor  of  the 
Province  of  Costa  Rica,  as  is  shown  by  several  orders 
which  its  governor,  at  that  time  Don  Tomas  de  Acosta, 
gave  to  the  Judge  and  Comandante  of  Matina,  and  the 
communications  of  this  Governor  to  the  Captain-Gen- 
eral of  Guatemala  concerning  matters  in  that  district 
(1808  and  1809).  The  official  communication  of  Don 
Tomas  de  Acosta  to  said  captain-general,  of  Septem- 
ber 20,  1809  (Doc.  No.  199),  merits  special  attention. 
In  that  communication  he  gives  an  account  of  the  let- 


152 

ter  which  the  Governor  of  the  Island  of  San  Andres 
had  written  to  him,  telling  him  that  the  Government  of 
Matina  belonged  to  that  of  San  Andres,  by  reason  of 
its  command  of  tlie  coast  from  Cape  Gracias  a  Dios  as 
far  as  the  Chagres  river ;  against  this  Acosta  protested, 
on  the  ground  that  it  was  contrary  to  immemorial  tra 
dition,  and  he  ended  by  stating  to  the  Captain-General 
as  follows: 

**In  this  Government  the  Royal  Orders  of  1803 
and  1807  which  O'Neille  cites  do  not  exist; 
wherefore  and  perhaps  because  he  has  not  given 
to  them  the  proper  understanding,  I  will  con- 
tinue without  change  in  the  command  of  this 
province  and  its  coasts,  until  Your  Worship  may 
otherwise  provide  or  consult  His  Majesty  ia 
order  to  avoid  disputes." 

On  November  7,  1809,  the  Captain-General  of  Guate- 
mala, replied  to  the  Governor  of  Costa  Rica  stating 
that  the  Governor  of  the  Island  of  San  Andres  had  no 
authority  whatever  over  the  Coast  of  Matina  (Doc. 
Nos.  200  and  201). 

The  Cortes  of  Cadiz,  on  the  petition  of  the  Deputy 
for  Costa  Rica,  Don  Florencio  del  Castilla,  without  op 
position  by  the  representatives  of  the  Viceroyalty  of 
Sante  Pe,  and  after  the  Council  of  the  Regency  had 
been  heard,  resolved  by  decree  of  December  1,  1811 
(Doc.  No.  204),  that  the  Port  of  Matina  should  be 
opened,  and  exemption  from  duties  on  exports  granted 
for  ten  years.  The  Captain-General  of  Guatemala  re 
ferred  the  decree  to  the  Governor  of  Costa  Rica,  on 
May  25,  1812,  because  of  the  fact  that  the  Port  of 
Matina  was  under  his  jurisdiction,  and  the  latter  gov- 
ernor replied,  on  July  1st,  that  he  was  fully  advised  of 


153 

this  sovereign  provision  for  its  execution   (Doc.  No. 
208). 

To  summarize;  neither  the  Mosquito  Coast,  nor  the 
coastal  portion  of  the  Province  of  Costa  Rica,  passed 
to  the  Viceroyalty  of  Santa  Fe,  but  continued  as  a  de- 
pendency of  the  Captaincy-General  and  Audiencia  of 
Guatemala  in  the  Viceroyalty  of  New  Spain,  The  only 
effect  produced  by  the  Royal  order  of  November  20, 
1803,  was  the  creation  of  the  government  of  O'Neille 
which  was  confined  to  the  Islands  of  San  Andres.  Those 
islands  having  been  the  subject  of  continuous  dispute 
between  the  Spanish  and  the  English,  were  left  to  Spain 
until  the  struggles  for  independence.  In  1818  a  band  of 
pirates  commanded  by  Captain  Louis  Aury,  took  pos- 
session of  them  and  held  absolute  sway  for  three  years ; 
and  in  1822  Colombia  occupied  them,  not  by  rights  de- 
rived from  the  Spanish  Colonial  regime,  but  by  having 
driven  off  the  pirates.  The  dependency  of  the  islands 
could  not  affect,  and  did  not  affect,  the  Province  of 
Costa  Rica. 

in. 

LAST  YEARS  OF  SPANISH  SOVEREIGNTY. 

1.    First  Period  of  the  Constitutional  Regime  in  Spain. 

(a)  General  Organic  Provisions. 

Spain  being  under  invasion,  in  1808,  by  the  troops 
of  Napoleon,  and  Fernando  VII  absent  from  the  coun- 
try, the  Supreme  Central  Junta  governed  in  the  Pen- 
insula and  in  America,  and  recognized  the  existence 
of  the  Province  of  Costa  Rica.  This  is  shown  by  the 
summons  for  the  election  of  deputies  in  1809,  in  which 


154 

that  province  took  part  (electing  for  tlie  extraordinary 
Cortes,  Don  Florencio  del  Castillo)  and  by  the  appoint 
ment  of  Don  Juan  de  Dios  de  Ayala  as  governor  of 
that  province  in  1810. 

America  had  a  numerous  and  brilliant  representa- 
tion in  the  Cortes  of  Cadiz  which  established  the  con- 
stitutional regime  in  Spain ;  indeed,  several  of  its 
Deputies — among  them  the  same  Don  Florencio  del 
Castillo — were  elevated  to  the  Chairmanship  in  recog- 
nition of  their  merit,  and  out  of  respect  for  America 
whose  provinces  were  always  looked  upon  by  the  Cor- 
tes as  sisters  of  those  of  the  Peninsula  and  subsisting 
under  a  common  politico-administrative  system. 

By  the  side  of  Don  Florencio  del  Castillo,  Deputy 
for  Costa  Rica,  were  the  representatives  of  Guatemala, 
Nicaragua,  Panama  and  New  Granada — Larrazabal, 
Lopez  de  la  Plata,  Ortiz,  Mexia  Lequerica  and  Count 
of  Punonrostro;  and  when  we  see  that  every  one  as- 
sented to  the  declarations  made  and  the  resolutions 
passed  in  that  body  with  respect  to  Costa  Rica,  we 
may  safely  assume  that  they  responded  to  the  actual 
facts  and  to  the  conveniences  of  the  provinces  inter- 
ested. The  Deputy  for  Panama,  Don  Jose  Joaquin 
Ortiz,  went  farther.  In  his  statement  to  the  Cortes, 
on  April  28, 1812  (Doc.  No.  475),  he  confirmed  the  his- 
torical boundaries  between  Costa  Rica  and  Panama, 
saying : 

"That  important  Isthmus  (of  Panama)  has, 
from  the  village  of  Chepo,  which  borders  on  the 
country  of  the  wild  Indians  of  Darien,  as  far  as 
the  village  of  Boqueron,  in  the  jurisdiction  of 
Chiriqui,  which  borders  upon  the  Kingdom  of 
Guatemala,  a  length  of  118  leagues.     *     *     *" 


155 

The  Constitution  of  Cadiz,  of  1812,  in  its  Art.  10 
(Doc.  No.  205),  maintained  the  separation  of  Guate- 
mala (which  it  expressly  mentioned)  and  New  Granadn 
(Sante  Fe),  and  preserved  the  territorial  division  ex- 
istins^  in  the  Spanish  dominions,  until  another  more 
convenient  division  should  be  made  by  means  of  a 
constitutional  law,  as  declared  in  Art.  11  (Doc.  No. 
205). 

After  the  Constitution  had  been  adopted  the  repre 
sentative  Cortes  passed  two  important  decrees  of  a 
legislative  character;  one  relating  to  judicial  organiza- 
tion and  the  other  concerning  provincial  government 

The  Decree  of  October  9,  1812  (Doc.  No.  210)  pro- 
vided in  Art.  1  that  until  a  new  division  of  the  territory 
should  be  made  there  would  be  an  audiencia  in  each 
of  the  provinces  that  then  had  one,  and  mentioned  as 
still  subsisting,  the  Audiencias  of  Guatemala  and  Santa 
Pe;  it  declared  in  Art.  2  that  those  audiencias  should 
retain  the  territory  they  then  had,  and  the  same  resi- 
dential seat.  The  Province  of  Costa  Rica  continued, 
then,  to  belong  to  the  Audiencia  of  Guatemala,  and 
preserved  the  same  eastern  boundaries,  which  were 
the  boundaries  of  that  audiencia  with  that  of  Santa  Fe. 

The  Decree  of  May  23,  1812  (Doc.  No.  207),  estab 
lished  a  new  provincial  regime,  and  created  the  su- 
perior political  chiefs  of  the  provinces  and  the  pro 
vincial  deputations,  as  provided  for  in  the  Constitu- 
tion. In  pursuance  of  that  decree  there  was  to  be  a 
provincial  deputation  in  each  of  the  provinces  espe- 
cially mentioned  in  Art.  10  of  the  Constitution  and 
therefore  in  Guatemala;  but  in  Guatemala  the  decree 
provided,  there  was  to  be  another,  to  be  established  in 
Leon  de  Nicaragua  ''with  the  Province  of  Costa  Rica." 


156 

l^his  provincial  deputation  was  called  that  of  Nica- 
ragua and  Costa  Rica. 

(h)  Cofitinuation  of  the  Dependency  of  the  Northern 
Coast  of  Costa  Rica  Upon  tlie  Government  of  That 
Province. 

Although  in  the  light  of  such  provisions  of  a  gen 
eral  organic  character,  it  clearly  follows  that  the  Prov- 
ince of  Costa  Rica  in  no  way  depended  upon  Santa  Fe 
or  New  Granada,  we  shall  have  to  insist,  as  regards  this 
northern  coast  (which  Colombia  pretends  to  consider 
as  embraced  in  the  Mosquito  Coast),  upon  adding  more 
proofs  of  the  inefficacy  and  abrogation  of  the  Royal 
order  of  San  Lorenzo,  of  November  20,  1803. 

We  have  already  shown  how  the  extraordinary  Cor- 
tes, at  the  petition  of  Don  Florencio  del  Castillo, 
Deputy  for  Costa  Rica,  decreed  the  opening  of  the 
Port  of  Matina,  belonging  to  that  province,  on  Decem- 
ber 1, 1811,  and  how  its  governor,  Don  Juan  de  Dios  de 
Ayala,  by  order  of  the  Captain-General  of  Guatemala, 
stood  ready  to  carry  that  decree  into  effect. 

The  governor  continued  to  act  in  connection  with 
the  Captain-General  of  Guatemala  in  every^thing  that 
related  to  Matina,  as  shown  by  his  communications  of 
August  5,  and  October  5, 1813  (Doc.  Nos.  212  and  213) 

The  Provincial  Deputation  of  Nicaragua  ihaving 
been  charged  with  making  the  provincial  division  of 
districts,  resolved,  as  its  secretary  certifies,  to  propose 
the  creation  of  two  political  sub-chiefs;  of  these,  ac- 
cording to  the  official  communication  of  its  president  of 
April  27,  1814  (Doc.  No.  214),  to  the  Minister  of 
Ultramar  (Affairs  Beyond  the  Seas),  one  was  to  be 
assigned  to  Granada,  where  the  vessels  unload  which 


157 

arrive  at  the  port  of  the  San  Juan  river,  on  one  of 
whose  banks  it  was  suggested  to  locate  a  settlement  of 
300  families — and  the  other  in  Cartago,  capital  of  the 
Province  of  Costa  Rica,  l)ecause  of  its  extent  *  *  * 
"and  because  upon  its  coasts,  it  has  the  ports  of  Punta 
de  Arenas  on  the  South  and  Matina  on  the  North." 
This  resolution  demonstrates  that  the  Mosquito  Coast 
continued  under  the  jurisdiction  of  Nicaragua,  and  the 
coast  of  Matina  under  that  of  Costa  Rica,  and  that  the 
establishment  of  settlements  on  the  San  Juan  river,  re 
f erred  to  in  the  Royal  order  of  March  31,  1808  (Doc. 
No.  198),  proceeded  in  due  course. 

By  Decree  of  April  29,  1814  (Doc.  No.  215),  the 
Cortes  resolved  to  open  the  port  of  Punta  de  Arenas, 
located  to  the  south  **of  the  Province  of  Costa  Rica." 

(c)  Description  of  the  Province  of  Costa  Rica  in  the 
Proposal  Made  by  Its  Deputy  in  the  Cortes  For  the 
Creation  of  a  Bishopric. 

In  the  session  of  the  Cortes  of  May  31,  1813,  pre- 
sided over  by  Don  Florencio  del  Castillo,  Deputy  for 
Costa  Rica,  the  proposal  of  the  latter  relating  to  tht^ 
creation  of  a  Bishopric  of  that  name  was  read;  it 
begins  as  follows: 

"In  the  Committee  on  Affairs  Beyond  the 
Seas  there  is  a  Memorial  from  the  Noble  Mu- 
nicipal Council  of  the  city  of  Cartago,  capital 
of  Costa  Rica,  which  asks  for  the  separation  of 
the  said  province  from  the  Bishopric  of  Leon 
de  Nicaragua  to  which  it  is  now  added,  to  the 
end  that  a  separate  diocese  being  created  in 
Costa  Rica,  there  shall  be  erected  and  estab- 
lished an  Episcopal  See  in  the  aforesaid  city  of 
Cartago. ' ' 


158 

Id  presenting  its  arguments,  the  petition  describes 
tlie  province  in  general,  as  follows : 

"Costa  Kiea  has  for  the  boundaries  of  its 
territory  the  River  Chiriqui,  wJiich  separates  it 
from  the  Provin<:e  of  Panama,  and  the  River 
Salto,  which  divides  it  from  that  of  Nicaragua, 
between  which  two  provinces  it  is  located.  It 
has  for  its  boundaries  on  the  North  and  the 
South  the  Atlantic  Ocean  and  the  Pacific  Ocean. 
From  one  of  the  rivers  that  are  designated  to 
the  other,  it  is  more  than  150  leagues,  by  verj' 
rough  roads  and  almost  impassable  on  accouni 
of  the  multitude  of  mountains  and  the  large 
rivers  that  must  be  crossed.  The  distance  from 
one  sea  to  the  other  is  not  uniform,  but  the  av- 
erage is  about  70  leagues." 

The  petition  goes  on  to  speak  of  settlements  in  that 
province  of  the  number  of  races  among  its  inhabitants, 
and  sums  up  by  saying: 

*'For  these  reasons  Costa  Rica  was  always 
considered  and  held  since  its  discovery  as  a 
province  separate  and  indepetident  from  the 
others ;  governed  in  political  and  military  affairs 
by  a  chief  with  the  title  of  Governor  and  Com 
andante  de  las  Armas,  who  recognized  no  other 
dependency  than  upon  the  Audiencia  and  Cap- 
taincy-General of  Guatemala;  so  that  it  is  only 
in  ecclesiastical  matters  that  it  has  been  added 
to  the  diocese  of  Nicaragua." 

It  is  impossible  to  describe  in  a  more  concrete  and 
positive  nmnner  the  status  of  the  Province  of  Costa 
Rica  in  1813;  and  that  status  conforms  perfectly  with 
the  status  which,  according  to  the  evidence  adduced 
from  the  great  mass  of  official  documents  we  have 
cited,  always  subsisted. 


ISO 
2.     Absolute  Government  of  Fernando  VII. 

Fernando  VII  on  his  return  to  Spain,  in  1814,  after 
the  evacuation  of  the  Peninsula  by  the  French,  an- 
nulled all  the  acts  of  the  constitutional  roi^dme,  and  re- 
established the  absolute  government  that  had  previ- 
ously existed. 

He  left  Don  Juan  de  Dios  de  Ayala  as  Governor  of 
the  Province  of  Costa  Ric^i,  and,  in  1838,  appointed  to 
that  oftiee,  Don  Boniardo  Vall.-irino.  On  the  death  of 
the  latter,  the  Audiencia  of  Guatemala  filled  the  oITk^ 
temporarily,  })y  the  appointraeut  of  Don  Junn  Manuel 
de  Cafias. 

The  Governor  of  Costa  Rica  continued  in  authority 
on  the  coast  and  at  the  Port  of  Matina,  keeping  in  com- 
munication with  the  Captain-General  of  Guatemala,  as 
may  be  seen  by  various  official  communications  from 
1815  to  1819  (Doc.  Nos.  218,  219,  220,  225,  226,  227  and 
229).  By  Royal  cedula  of  May  2f),  1818  { Doc.  No.  228), 
addressed  to  the  Captain-General  of  Guatemala,  the 
King  commanded  a  report  to  be  made  in  regard  to  the 
amendment  of  the  impost  upon  cacao  derived  from  the 
Valley  of  Matina. 

The  territory  of  Talamanca  continued  to  belong  to 
the  Province  of  Costa  Rica,  as  shown  by  the  account 
given  by  Fray  Ramon  Roxas,  Comisario  prefecto  of 
the  Missions,  to  the  Bishop  of  Nicaragua,  dated  July 
3,  1815  (Doc.  No.  217) ;  in  this  he  tells  the  Bishop  that 
*'*  *  *  the  reduction  of  Talamanca  is  upon  the 
borders  of  this  diocese,  on  the  side  adjacent  to  that  of 
Panama,"  and  relates  how  the  governors  of  Costa 
Rica  protect  the  missions  of  Talamanca. 

Although  the  Cortes  was  dissolved,  Fernando  VTI 
by  Royal  order  of  June  17,  1814,  exhorted  those  who 


160 

had  been  deputies  of  the  American  provinces,  to  sub- 
mit to  him  the  petitions  that  they  had  pending^,  and  any 
other  matters  pertaining  to  their  respective  provinces. 
This  was  done  by  Don  Plorencio  del  Castillo,  ex-Dep- 
uty for  Costa  Rica,  in  his  statement  to  the  King  of 
July  12  of  the  same  year  (Doc.  No.  216),  in  which  he 
reproduces  what  he  had  presented  to  the  Cortes  on 
May  31,  1813,  repeating  the  paragraphs  that  we  have 
transcribed  regarding  the  limits  of  Costa  Rica  and 
insisting  that  it  had  always  been  a  province  separate 
from  the  rest,  ruled  by  a  governor  dependent  solely 
upon  the  Captaincy-General  and  Audiencia  of  Guate- 
mala. 

By  Royal  cedula  of  May  26,  1818,  in  accord 
with  the  Council  of  the  Indies,  Fernando  V'll 
commanded  the  Captaincy-General  of  Guatemala  to 
report  concerning  the  proposal  of  Don  Florencio  del 
Castillo  respecting  the  creation  of  a  Bishopric  of  Costa 
Rica,  and  took  counsel  with  the  Intendant  and  the 
Bishop  of  Nicaragua,  the  Fiscal  (Attorney  General) 
and  the  Audiencia  of  Guatemala,  in  order  to  determine 
what  was  best  to  be  done. 

3.    Second  Constitutional  Period. 

The  Constitution  of  Cadiz  was  re-established  in  1820, 
and  with  it  the  Provincial  Deputation  of  Nicaragua 
and  Costa  Rica;  whereupon  that  deputation  on  De- 
cember 13,  1820  (Doc.  No.  476),  again  took  up  the 
proposition  for  the  division  by  districts  (enumerating 
the  principal  places  of  each)  and  the  creation  of  po- 
litical sub-chiefs.  In  the  note  accompanying  the  com- 
munication concerning  those  matters  addressed  to  the 
Minister  of  Affairs  Beyond  the  Seas,  it  is  shown  that 


161 

the  Province  of  Costa  Rica  was  under  the  charge  of  a 
political  and  military  governor  independent  of  the 
Governor  of  Nicaragua,  save  in  the  matter  of  Hacienda 
(Finances),  of  which  a  sub-intendant  had  charge  mider 
the  Ordinance  of  1786,  and  he  depended  upon  the  In- 
tendancy-General  of  Nicaragua.  By  lloyal  order  of 
February  27,  1822,  it  was  directed  that  this  plan  be 
forwarded  to  the  Minister  of  the  Interior  for  investi- 
gation. 

In  the  session  of  the  Cortes  of  May  17,  1821,  Don 
Jose  Mariano  Mendez,  Deputy  for  one  of  the  Guate- 
mala districts,  presented  a  memorial  of  which  he  was 
the  author,  entitled,  "Memorial  of  the  Political  and 
Ecclesiastical  Condition  of  the  Captaincy-General  of 
Guatemala,  a  Plan  for  the  Division  into  Eight  Prov- 
inces, With  as  Many  More  Provincial  Deputies,  Politi- 
cal Chiefs,  Intendants  and  Bishops,"  which  memorial, 
according  to  the  records,  was  favorably  received  by 
the  Cortes  and  referred  to  the  Committees  on  Pro- 
vincial Deputations,  Ecclesiastical  Affairs  and  Finance. 

This  very  interesting  memorial  (Doc.  No.  230)  be- 
gins by  saying : 

''Guatemala,  situated  in  Northern  America, 
longitude  from  282  degrees  to  295  degrees,  and 
latitude  from  8  degrees  to  17  degrees,  has  a 
length  of  13  degrees,  which  makes  227  Castilian 
leagues  of  17^2  to  the  degree;  and  by  road  it  is 
calculated  at  more  than  700  leagues  from  Chi 
lillo,  the  end  bordering  with  the  Audiencia  of 
Mexico,  as  far  as  Chiriqui,  the  frontier  line  of 
the  jurisdiction  of  the  Audiencia  of  Santa  Fe 
de  Bogota.  In  width  it  is  9  degrees,  from  the 
southern  territories  of  Costa  Rica  to  the  north- 
ern ones  of  Chiapa.  *  *  *  It  borders  on  the 
West  with  the  Intendancy  of  Guaxaca;  on  the 


162 

East  with  the  Province  of  Veragua,  district  of 
Tierra  Fimie  and  Santa  Fe;  on  the  North  with 
the  Ocean  and  on  the  South  with  the  Pacific." 

It  then  goes  on  to  explain  that 

"*  *  *  throughout  the  extent  of  this 
Kingdom  there  is  but  one  Audiencia,  which  sits 
in  the  capital  of  Guatemala,  with  its  Captain 
General,  who  has  a  large  number  of  subordinat-:* 
chiefs  for  the  political  and  military  administra- 
tion and  Government  of  the  fifteen  provinces 
into  which  it  is  divided." 

This  number  is  made  up  of  eight  alcadms  mayores, 
two  corregimientos,  the  Government  of  Costa  Rica  and 
the  Intend ancies  of  Nicaragua,  Chiapa,  Comayagua  de 
Honduras  and  San  Salvador. 

It  indicates  the  inconveniences  of  this  division  and 
suggests  that  eight  provinces  be  created,  each  with  its 
respective  civil  and  ecclesiastical  authorities. 

Of  the  Province  of  Costa  Rica — the  first  of  the 
eight — he  speaks  as  follows : 

''This  city  (of  Cartago)  is  the  capital  of  the 
province  of  Costa  Rica,  situated  in  the  center, 
at  80  leagues  from  the  frontier  line  of  Nicaragua 
and  as  many  more  from  that  of  Costa  Firme, 
jurisdiction  of  Veragua,  and  at  thirty  leagues 
from  the  Port  of  Esparza  on  the  South  Sea,  and 
at  a  like  distance  from  that  of  Matina,  on  the 
North  Sea ;  so  that  the  total  length  is  160  leagues 
and  the  width  60.  *  *  *  In  1813,  its  Dep 
uty  in  the  Cortes  endeavored  to  have  it  erected 
into  a  Bishopric  *  *  *  and  this  same  effort 
was  repejated  in  the  present  Cortes,  asking  for  a 
Provincial  Dc^putation  *  *  * ;  its  better  ad- 
ministration and  government  can  only  be  at- 


163 

tained  by  means  of  a  Provincial  Deputation, 
Political  Chief,  Intendant,  University,  College 
and  Bishop  without  canons." 

IV. 

THE   INDEPENDENCE   AND   THE    "UTI   POSSI- 
DETIS." 

1.    Independence  of  the  Provinces  of  Guatemala  and 
New  Granada. 

During  this  second  constitutional  period,  Costa  Rica 
was  emancipated  from  the  sovereignty  of  Spain. 

The  news  of  the  Spanish  revolutionary  movement  of 
1820,  revived  the  insurrection  of  Mexico  which  had 
been  suppressed;  General  Itiirbide  placed  himself  at 
its  head  and  on  February  24,  1821,  put  forth  the  mani- 
festo of  Iguala  (Doc.  No.  243),  proclaiming  the  inde- 
pendence of  Mexico.  Following  this  example,  Guate- 
mala also  declared  itself  independent  of  Spain,  in  Sep 
tember,  and  Costa  Rica,  in  October,  of  the  same  year 
(the  governor  then  beini;-  Don  Manuel  de  Caiias). 

General  Iturbide  caused  himself  to  be  proclaimed 
Emperor  of  Mexico,  with  the  name  of  Augustin  I,  in 
May,  1822.  The  provinces  of  the  old  Captaincy-Gen 
eral  of  Guatemala  joined  the  new  Mexican  Empire; 
but  on  the  dissolution  of  the  latter,  in  March,  1823, 
they  united  and  sent  representatives  to  a  constituent 
assembly  which,  in  July  of  that  year,  ratified  their 
independence  from  both  Spain  and  Mexico.  That  as- 
sembly adopted  the  Constitution  of  the  United  Prov- 
inces of  the  Center  of  America,  of  November  22,  1824 
(Doe.  No.  254),  thus  forming  a  republican  confedera 


Ib4 

tion  composed  of  five  States:  Guatemala,  Salvador, 
Honduras,  Nicaragua  and  Costa  Rica,  each  of  wliicn 
had  its  own  constitution. 

This  confederation  lasted  for  fourteen  years,  until 
the  feleral  compact,  having  been  broken  by  the  con- 
gress of  1838,  there  were  born  the  five  republics  that 
now  bear  those  names,  each  with  an  entirely  inde- 
pendent life. 

The  insurrectionary  movement  of  the  provinces  of 
the  Viceroyaity  of  New  Granada  was  distinct.  It  had 
its  principal  center  in  Santa  Fe  de  Bogota  which,  in 
July,  1810,  rose  against  the  viceroy  and  attempted  to 
form  a  confederation  of  those  provinces.  The  move 
ment,  however,  failed  of  success  until  Bolivar,  who  had 
achieved  the  independence  of  Venezuela,  placed  him- 
self at  its  head.  The  Congress  of  Angostura  (in  Vene- 
zuela), of  February  19,  1819,  decreed  the  formation  of 
the  Republic  of  Colombia,  with  the  provinces  of  Vene- 
zuela and  New  Granada.  The  Congress  of  Rosario  de 
Cucuta  approved  the  Constitution  of  this  Republic  on 
August  30,  1821. 

The  Province  of  Panama,  where  the  Viceroy,  Sam- 
ano.  was  established,  was  proclaimed  independent  of 
Spain,  in  November,  1821,  and  agreed  to  cast  in  its 
lot  with  the  Republic  of  Colombia. 

So,  that,  in  November  of  1821,  the  sovereignty  of 
Spain  ended  h\  the  two  provinces  of  Costa  Rica  and 
Panama,  bordering  on  the  two  viceroyalties  and  au- 
dlencia.s,  each,  on  its  emancipation,  attaching  itself  to 
those  provinces  with  which  it  had  been  united — Costa 
Kira  with  the  Guatemala  provinces;  Panama  with  those 
of  New  Granada. 


165 

2.    The  Principle  of  Colonial  "Uti  Possidetis." 

*'Uti  possidetis"  was  the  term  used  in  the  Roman 
law  to  designate  the  interdict  of  retention  of  possession 
which  the  praetor  pronounced,  in  the  interest  of  the 
holder  of  property,  to  protect  him  in  his  possession 
80  long  as  he  was  not  defeated  in  a  trial  of  ownership, 
using  a  long  phrase  whicli  was  condensed  into  these 
words,  " uti  possidetis,  ita  possideatis;"  that  is,  "as 
ye  possess,  so  may  ye  possess  (so  may  ye  continue 
possessing)." 

This  term,  ^'uti  possidetis,"  having  been  adopted 
into  international  law,  serves  to  designate  the  principle 
of  ''the  conservation  of  the  possessory  status"  in  in- 
ternational relations.  The  principle  of  the  "colonial 
uti  possidetis"  signifies  the  recognition  of  the  posses- 
sory status  in  which  the  provinces  or  regions  were 
found  when  they  were  colonies,  and  the  continuity 
thereof  after  they  had  been  emancipated  and  formed 
independent  states. 

The  importance  of  this  principle  may  be  easily  uu 
derstood  in  the  demarcation  of  the  states  that  sprang 
into  existence  in  America  upon  the  cessation  of  Spain's 
sovereignty.  Those  states  had  no  other  history  than 
that  of  the  colonial  period ;  but  during  that  period  they 
had  formed  themselves  into  communities,  with  their 
own  customs,  traditions  and  social  and  administrative 
institutions  that  differentiated  each  from  the  others. 
It  was  but  natural,  therefore,  that  they  should  con- 
tinue to  live  as  they  had  lived — in  the  same  territories 
and  undergoing  no  other  change  than  that  involved  in 
the  acquisition  of  sovereignty,  or  such  changes  as  they 
might  wish  to  establish  in  the  exercise  of  such  sov- 
ereignty. 


166 

All  the  territor\'  of  the  Indies  had  been  divided  by 
the  Sovereigns  of  Spain  into  viceroyalties,  audiencias 
and  governments  of  various  classes,  within  the  re- 
spective demarcations  of  which,  those  communities 
were  formed,  each  \vith  vast  areas  to  be  settled.  The 
provinces  emancipated  themselves  as  best  they  could; 
those  of  one  great  circumscription  united  or  passed 
voluntarily  from  one  circumscription  to  another,  or 
separated  among  themselves,  and  constituted  them- 
selves into  independent  republics.  When  the  common 
sovereign  power  was  withdrawn,  it  became  indispen- 
sably necessary  to  agree  on  a  general  principle  of 
demarcation,  since  there  was  a  universal  desire  to 
avoid  the  resort  to  force,  and  the  principle  adopted 
was  the  colonial  uti  possidetis;  that  is,  the  principle 
involving  the  preservation  of  the  demarcations  under 
the  colonial  regime  corresponding  to  each  of  the  co- 
lonial entities  that  was  constituted  as  a  state.  Thus, 
also,  it  prevented  the  seizure  by  foreign  nations  of 
any  of  those  vast  unsettled  territories. 

The  principle  of  uti  possidetis  was  introduced  recip- 
rocally into  the  relations  of  the  American  republics  of 
Spanish  origin  by  the  Treaty  of  Bogota,  of  1811,  en- 
tered into  by  the  United  Provinces  of  Venezuela  and 
the  United  Provinces  of  New  Granada;  in  that  instru 
ment  they  undertook  to  recognize  and  respect  as  the 
boundaries  between  those  that  pertained  to  the  Cap- 
taincy-General and  Viceroyalty  bearing  those  names-  - 
a  principle  that  was  extended  over  the  whole  of  Latin 
.\merica. 

But  if  there  was  general  accord  in  the  acceptance  of 
that  principle,  difficulties  arose  in  its  application, 
mainly  concerning  the  character  of  the  possessory 
status  and  the  date  to  be  taken,  each  republic  insisting 


167 

upon  what  was  most  desirable  for  its  own  interests 
according  to  the  situation  in  which  it  found  itself. 

3.    Application  of  the  Principle. 

Further  exposition  of  this  doctrine  of  the  uti  possi- 
detis, which  pertains  to  the  international  law  of  Latin 
America,  is  unnecessary,  since  we  address  ourselves, 
in  this  opinion,  to  the  colonial  Spanish  law;  still  we 
set  forth  the  situation  of  Costa  Rica  in  order  to  apply 
that  principle. 

The  fundamental  law  of  the  State  of  Costa  Rica,  of 
January  21,  1825  (Doc.  No.  255)  expressed  perfectly 
the  equation  between  its  territory  and  that  of  the 
Spanish  province  of  that  name;  it  fixed  its  limits  in 
the  same  way  that  they  existed  in  fact  and  law,  at  the 
moment  when  the  sovereignty  of  Spain  came  to  an  end. 
In  its  Art.  15  the  law  provided: 

**The  territory  of  the  State  is  now  extended 
from  West  to  East,  from  the  River  Salto,  which 
divides  it  from  Nicaragua,  to  the  River  Chiriqni, 
the  end  of  the  Republic  of  Colombia ;  and  North 
South  from  one  Sea  to  the  other,  its  limits  being 
on  the  North  at  the  mouth  of  the  River  San 
Juan  and  the  Esnido  de  Veragua,  and  on  the 
South  at  the  outlet  of  the  River  Alvarado  and 
that  of  Chiriqui." 

The  expression  **now,"  used  in  connection  with 
Nicaragua,  was  adopted  because  the  addition  of 
Nicoya  was  expected,  that  province  having  manifested 
its  desire  to  unite  with  Costa  Rica ;  and  it  was  in  fact 
so  united  by  decree  of  the  Federal  Congress  of  the 
Republic  of  Central  America  of  December  9  of  the 
same  year  (Doc.  No.  258). 


168 

That  fundamental  law  of  Costa  Rica  harmonizes 
with  the  law  of  territorial  division  of  the  Republic  of 
Colombia,  of  June  25,  1824  (Doc.  No.  251),  which  had 
respected  the  limits  of  the  former  State.  Colombia 
divided  her  territory  into  twelve  departments,  subdi- 
vided into  provinces  composed  of  cantons.  The  De- 
partment of  the  Isthmus  was  made  up  of  two  prov- 
inces: That  of  Panama  and  that  of  V^eragua.  The 
Province  of  Veragua  was  divided  into  four  cantons — 
Santiago  de  Veragua,  Mesa,  Alanje  and  Guaimi.  All 
these  cantons  were  located  to  the  east  of  Costa  Rica, 
including  that  of  Guaymi  which  was  another  portion 
of  the  valley  of  that  name,  and  had  for  its  capital,  the 
town  of  Remedies. 

A  few  days  after  this  law  was  published,  the  Gov- 
ernment of  Colombia  issued  the  Decree  of  July  5,  1824 
(Doc.  No.  252),  declaring  illegal  "every  enterprise 
which  is  undertaken  to  colonize  any  point  of  that  por- 
tion of  the  Coast  of  Mosquitos  from  Cape  Gracias  a 
Dios,  inclusive,  toward  the  River  Chagres,  which  be- 
longs to  the  Republic  of  Colombia,  in  virtue  of  the 
formal  declaration  made  at  San  Lorenzo  on  November 
30,  1803."  It  was  sought  by  this  action  to  give  life  to 
the  Royal  order  relating  to  the  Government  of  the 
Islands  of  San  Andres,  which  had  died  still-bom  and 
to  which  no  one  had  paid  any  attention  during  the  co- 
lonial period ;  the  nullity  and  ineflficacy  of  that  Royal 
order  with  respect  to  Costa  Rica  we  have  already  dem- 
onstrated. And  it  must  be  observed  that  it  was  not 
taken  into  consideration  in  making  the  law  of  terri- 
torial division  which  was  prepared  and  sanctioned  at 
that  time. 

On  March  15,  1825  (Doc.  No.  257),  was  signed  in 
Bogota  the  treaty  between  the  Republic  of  Colombia 


16"* 

and  the  Federal  Republic  of  Central  America  of  which 
the  State  of  Costa  Rica  formed  a  part,,  and  by  which 
the  latter  republic  bordered  on  the  former.  The  par- 
ties mutually  guaranteed  the  inteyritif  of  their  respect- 
ive territories  ''as  they  existed  naturally  prior  to  the 
present  war  of  independence,"  and  obligated  them- 
selves to  respect  their  boundaries  "as  they  now  exist;" 
they  also  agreed  to  the  reservation,  ''as  soon  as  cir- 
cumstances will  permit,  to  settle  in  a  friendly  manner 
the  line  of  demarcation  between  the  two  states,  or 
w^henevcr  one  of  the  parties  shall  be  disposed  to  enter 
on  this  negotiation." 

In  the  conferences  held  during  the  negotiation  of 
that  Treaty  of  1825  the  Minister  of  Foreign  Relations  of 
Colombia,  Don  Pedro  Gual,  proposed  a  change  in  the 
existing  boundaries  based  on  the  proposition  to  giv*^ 
effect  to  the  Royal  order  of  1803.  The  Minister  Pleni- 
potentiary of  Central  America,  Don  Pedro  Molina, 
replied  that  he  was  without  instructions  on  this  point. 
"Well,  then,  responded  Seiior  Gual,  as  to  boundaries 
it  is  necessary  to  hold  to  the  uti  possidetis  of  1810,  or 
1820,  as  may  be  desired.  Senor  Molina  having  acqui- 
esced, Senor  Gual  was  charged  with  preparing  the 
articles  arranged  at  the  time  of  making  this  project." 
It  is  thus  set  forth  in  the  protocol  of  the  conference  be- 
tween the  two  representatives  of  March  4,  1825  (Doc. 
No.  256). 

From  the  foregoing  it  appears  that  both  parties 
were  agreed  in  recognizing,  in  1824  and  1825 — three  or 
four  years  after  the  independence — as  the  boundaries 
existing  in  fact  between  the  Spanish  Provinces  of  Costa 
Rica  and  Veragua  at  the  moment  of  independence,  thd 
same  boundaries  which  they  promised  to  respect  and 
mutually  adhere  to.    The  Colombian  law  of  territorial 


170 

division,  of  June  25, 1824,  did  not  go  beyond  the  bound- 
aries of  Veragua;  the  fundamental  law  of  Costa  Rica 
of  January  21,  1825,  included  from  sea  to  sea,  as  far 
as  the  Escudo  de  Veragua  and  the  Ohiriqui  {Vie jo) 
river;  and  the  Treaty  of  Bogota  of  May  15,  1825,  pre- 
served the  existing  boundaries,  without  making  tho 
changes  which  the  Minister  of  Colombia  had  claimed 
on  the  authority  of  the  Royal  order  of  1803. 

The  principle  of  uti  possidetis,  then,  was  accepted 
by  common  consent  in  the  sense  of  preserving  the  pos- 
sessory status,  Colombia  declaring  that  whether  the 
year  1810  or  1820  be  adopted  in  connection  with  that 
status  should  be  "as  it  might  be  desired  to  understand 
it"  This  is  easy  enough  to  understand  because  the 
change  projDosed  by  Colombia  not  having  been  adopted, 
it  was  a  matter  of  indifference  which  date  should  be 
selected,  that  possessory  status  being  the  same  in  both 
periods. 

But  Colombia's  ambition  to  extend  herself  into 
Central  America,  grew  apace.  Taking  advantage, 
therefore,  of  the  discord  that  prevailed  among  the 
States  of  the  Federation,  in  1836,  she  treated  the  ter- 
ritory of  Bocas  del  Toro  and  all  its  islands  as  her  own, 
and  occupied  them  with  force.  To  justif}^  such  ambi- 
tions and  the  acts  that  were  committed  in  carrying 
them  out,  Colombia,  resorted  to  the  Royal  order  of 
San  Lorenzo,  of  1803,  on  the  assumption  that  it  con- 
stitut(Ml  the  uti  possidetis  de  jure  of  1810,  and  that 
under  its  sanction  she  was  entitled  to  the  dominion 
(which  had  pertained  to  the  Viceroyalty  of  Sante  Fe) 
over  the  Atlantic  coast  from  Cape  Gracias  a  Dios  to 
wards  the  Chagres  river,  including  the  Matina  Coast. 

Colombia,  therefore,  interpreted  the  principle  of 
uti  possidetis  in  the  sense  of  the  preservation  of  the 


171 

right  of  ownership  instead  of  that  of  possession; 
whereas,  the  fact  is  that  that  principle,  as  its  name 
indicates,  and  in  consonance  with  the  interdict  from 
which  it  is  derived  requires  as  an  indispensable  condi- 
tion "the  fact  of  being  in  possession."  The  right  to 
property,  unaccompanied  by  possession,  may  be  ground 
for  recovery,  but  never  for  the  interdict  of  retention 
or  the  right  to  preserve  possession  that  is  lacking. 

The  Republic  of  Colombia,  by  combatting  the  inter- 
pretation of  the  uti  possidetis  in  the  sense  of  preserva- 
tion of  the  possessory  condition  de  facto,  and  alleging 
in  favor  of  herself  rights  of  ownership  founded  upon 
laws  and  Royal  orders,  recognizes  that  the  Viceroyalty 
of  Santa  Fe  had  not  been  in  possession  of  the  territo 
ries  which  she  has  claimed  as  its  heir. 

Colombia  asks  in  the  arbitration  that  the  question 
of  boundaries  with  Costa  Rica  be  decided  by  the  prin- 
ciple of  uti  possidetis  de  jure,  asserting  in  her  docu- 
ments that  according  to  the  Recopilacion  de  Indias  the 
Government  of  Costa  Rica  must  have  belonged  to  that 
of  Tierra  Firme,  by  having  been  embraced  within  the 
Province  of  Veragua,  which  belonged  to  Tierra  Firme, 
and  that  under  the  Royal  order  of  1803,  the  Govern- 
ment of  the  Mosquito  Coast  and  that  of  the  Atlantic 
coast  of  Costa  Rica  must  have  belonged  to  the  Vice- 
royalty  of  Sante  Fe.  But  she  does  not  say  that  the 
Government  of  Tierra  Firme  had  jurisdiction  over 
Costa  Rica  subsequently  to  the  creation  of  the  Audi- 
encia  of  the  Confines,  or  of  Guatemala,  nor  did  the 
Viceroyalty  of  Santa  Fe  exercise  even  partial  control 
therein ;  and  she  could  not  state  this,  since  it  is  entirely 
contrary  to  the  truth  of  history. 

The  territory  and  boundaries  possessed  by  Costa 
Rica  at  the  moment  of  her  emancipation,  she  held  by 


172 

virtue  of  legal  titles,  having  been  definitively  oonsti- 
tuted  by  her  historic  evolution  as  a  province,  and  kav- 
ing  lived  continuously  under  that  legal  status  sanc- 
tioned and  couiirmed  by  a  long  series  of  acts  of  juris- 
<]iciion  and  sovereignt3\ 

That  is  why  Costa  Rica,  although  she  understands 
that  the  uti  possidetis  cannot  be  conceived  without 
possession,  has  accepted  in  this  arbitration  the  so- 
called  uti  possidetis  de  jure,  because  she  has  in  her 
favor  the  uti  possidetis  not  only  de  jure,  but  de  facto. 
The  description  of  its  territory,  which  the  State  of 
Costa  Rica  gave  in  Art.  15  of  its  fundamental  law  of 
January  21,  1825,  accords  with  the  descriptions  we 
have  given  of  the  territory  embraced  therein  in  fact 
and  law,  when  it  was  a  Spanish  province,  to  wit,  from 
sea  to  sea,  from  Nicaragua  to  the  Escudo  de  Veragua 
on  the  north  and  the  mouth  of  the  Chiriqui  {Viejo)  on 
the  south.  Such  was  it  possessory  status  when,  on 
the  15tli  of  March  of  the  same  year,  iu  Bogota  the 
treaty  was  signed  by  the  Republic  of  Colombia  and 
the  Federal  Republic  of  Central  America;  in  that 
treaty  the  boundaries  that  "then  existed"  were  recog- 
nized, and  the  parties  mutually  guaranteed  their  re- 
spective territories. 

Colombia  claims  that  the  uti  possidetis  of  all  Spanish 
America  refers  to  the  year  1810,  because  it  was  then 
that  the  insurrectionary  movement  began  which  led  to 
the  Treaty  of  1811.  In  that  treaty  the  provinces  of 
Venezuela  and  those  of  New  Granada  undertook  to 
recognize  and  to  respect  as  boundaries  between  them- 
selves those  belonging  to  the  captaincy-general  and 
viceroyalty.  But  the  principle  of  uti  possidetis  hav- 
ing been  proclaimed  to  enable  the  new  states  to  accept 
as  boundaries  those  which  their  respective  provinces 


173 

had  possessed  when  they  were  emancipated  and  thus 
establish  the  continuity  of  possession,  it  could  not  be 
applied  to  all  as  of  the  same  date,  but  as  of  the  date  of 
the  emancipation  of  each  province  or  region  whi(-h 
became  a  state,  for  until  their  emancipation  they  con- 
tinued under  the  sovereignty  of  Spain  who  could  freely 
dispose  of  them. 

The  insurrectionary  movement  of  1810  was  repressed 
by  Spain,  and  this  same  Republic  of  Colombia  was  not 
born  until  December,  1819,  nor  was  she  definitively  con- 
stituted as  a  sovereign  state  until  August,  1821.  The 
Province  of  Guatemala  proclaimed  itself  independent 
on  September  15,  1821 ;  those  of  Costa  liica  and  Pan 
am  a,  in  October  and  November  of  tlie  same  year. 
Therefore,  if  a  common  date  be  adopted  for  llie  uti 
possidetis  of  the  provinces  that  figure  in  tlio  question 
of  boundaries,  it  must  be  the  year  1821. 

Costa  Rica  very  properly  insists  on  the  uti  posside- 
tis of  1821,  although  she  would  be  under  no  disadvan- 
tage were  that  of  1810  adopted,  for  lier  possessory 
status  as  to  boundaries  was  in  fact  and  law,  the  same 
in  one  year  as  in  the  other. 

RESUME  AND  CONCLUSIONS. 

Summary. 

1.  Resume  and  General  Conclusions  of  This  Opinion. 

2.  Agreement  Respecting  the  Legal  Bases  For  the 

Determination  of  the  Case. 

3.  Question  of  Territoriality. 

4.  Question  of  Delimitation: 

(a)  Costa  Rica's  Evidence. 

(b)  Colombia's  Evidence. 


174 

(c)  Special  Consideration  of  the  Boundaries  of 
the  Dukedom  of  Veragua. 
5.  Final  Deductions. 

1.    Resume  and  General  Conclusions  of  This  Opinion. 

We  believe  that  we  have  demonstrated  the  three  fol- 
lowing propositions,  which  constitute  the  three  parts 
into  which  we  have  divided  this  work: 

1.  The  Province  of  Costa  Rica  and  that  of  Veragua 
were  definitivelj^  established  and  marked  out  by  the 
Crown  in  the  XVIth  Century,  in  the  year  1537. 

2.  The  Recopilacion  de  Indias  respected  and  con- 
firmed the  existence  and  demarcation  of  Costa  Rica. 

3.  Costa  Rica  continued  in  the  same  legal  status  of 
differentiation  from  Veragua,  from  the  publication  of 
the  Recopilacion  down  to  the  independence. 

These  propositions  are  the  synthetic  resume  and  the 
general  conclusions  of  our  opinion. 

The  clearness  with  which  we  think  we  have  presented 
the  facts  and  the  law  relating  to  each  of  these  proposi- 
tions, by  means  of  the  appropriate  headings  and  sum- 
maries, as  also  the  categorical  form  used  in  the  state 
ment  of  our  opinion  upon  each  of  the  questions  em- 
braced in  each  proposition,  renders  unnecessary  a 
fuller  resume  or  a  more  extensive  statement  of  the 
conclusions  of  this  opinion;  we  respectfully  refer  to 
the  discussions  of  the  points  in  the  text. 

We  shall,  however,  state  our  conclusions  as  to  the 
results  of  the  arguments  made  in  the  arbitral  pro- 
ceedings on  the  three  questions  following,  which  are 
the  very  essence  of  the  case — the  legal  basis  for  its 
determination,  territoriality  and  the  boundaries  prop 
erly  so-called. 


175 

2.    Agreement  Respecting  the  Legal  Bases  For  the 
Determination  of  the  Case. 

We  have  just  seen  that  both  parties  are  agreed  iu 
accepting,  as  the  legal  basis  for  the  determination  of 
the  case,  the  principle  of  the  colonial  uti  possidetis, 
as  of  the  year  1810,  although  Costa  Rica  holds,  as  do 
we,  that  it  ought  to  apply  to  the  year  1821.  And  "we 
have  also  seen  that  Costa  Rica  finds  no  difficulty  in 
admitting  the  application  of  this  principle  from  the 
point  of  view  of  law  {de  jure),  but  it  must  be  jointly 
with  the  fact  of  possession  {de  facto) ;  for  we  consider 
that  without  possession  the  uti  possidetis  is  incon- 
ceivable. Both  parties  are  also  agreed  in  recognizing 
as  a  legal  basis  what  was  provided  by  the  Recopilacion 
de  Indias  and  the  Crown  of  Spain  in  the  exercise  of 
the  legislative  power.  '  The  difference  of  opinions 
consists  in  the  fact  that  Colombia  denies  legal  force 
to  the  demarcatory  provisions  prior  to  the  Recopila- 
cion,  conceding  it  to  others  which  are  subsequent, 
whilst  Costa  Rica  maintains  the  contrary,  according 
to  the  character  of  the  acts  under  discussion. 

In  our  opinion  the  Recopilacion  de  Indias  is  really 
the  axis  of  the  jurisprudence  with  which  we  are  con- 
cerned. The  history  of  Spanish  colonial  law  is  di- 
vided into  three  periods :  The  law  prior  to  the  Recopi- 
lacion, that  established  by  the  Recopilacion  and  that 
subsequent  thereto.  And  to  these  three  periods  of 
that  history  we  have  made  the  three  parts  of  our  opin- 
ion corresi)ond.  Of  the  law  prior  to  the  Recopilacion, 
not  only  that  which,  as  Colombia  assumes,  is  expressly 
re-enacted,  is  valid,  but  also  that  which  is  respected, 
confirmed  or  admitted  as  supplementary.  Of  the  laws 
provided  after  the  Recopilacion  only  those  are  valid 


176 

which  conform  to  the  laws  in  that  compilation,  or  their 
amendments,  under  the  conditions  and  procedure  es- 
tablished by  it. 

3.     Question  of  Territoriality. 

The  legal  criterion  under  which  the  case  must  be 
decided  liaving  been  established,  it  is  imporiant  to 
distinguish  two  questions  which  have  been  confused 
under  the  common  designation  of  "question  of  bounda- 
ries:" That  of  territoriality  and  of  delimitation;  that 
is  to  say,  the  question  of  ownership  of  a  determined 
territory  (a  geographical,  political  or  administrative 
unit),  and  that  of  the  marking  out  of  the  divisional  line 
which  separates  it  from  another  or  several  other  ter- 
ritories. 

It  clearly  results  from  the  argument  in  the  arbitral 
proceedings,  that  Colombia  does  not  treat  the  question 
of  l)oundaries  properly  speaking,  but  that  of  territo- 
riality. Colombia  denies  the  territoriality  of  Costa 
Rica:  first,  entirely,  on  the  authority  of  the  Recopila- 
cion  de  Indias;  and  afterwards,  partially,  invoking  the 
Royal  order  of  1803.  In  order  to  deny  it  entirely,  she 
makes  use  of  a  geographical  equivoque  based  upon  the 
name  of  Veragua  by  taking  for  the  "Province  of  Ver 
agua"  the  primitive  Veragua.  In  order  to  deny  that 
territoriality  partially,  she  gives  to  the  Mosquito  Coast 
an  extent  it  did  not  have. 

We  cannot  reconcile  this  method  of  attack  to  a  pro- 
ceeding international  in  character,  except  on  the  theory 
that  it  is  resorted  to  in  pursuance  of  the  time-worn 
maneuver  of  asking  for  everything  in  order  to  obtain 
something ;  for,  were  Colombia  to  succeed  in  producing 
the  conviction  that  all  the  territory  of  the  State  of 


177 

Costa  Rica  ought  to  be  adjudicated  to  her  by  virtue 
of  old  colonial  rights,  the  Arbitrator  could  not,  in  de- 
termining a  conflict  of  boundaries  annul  or  almost 
annul  the  existence  of  a  State  which  had  been  formed 
by  the  sovereignty  of  an  emancipated  people,  which 
has  been  recognized  in  the  integrity  of  its  territory 
by  the  other  State,  and  wliich  voluntarily,  in  its  own 
personality,  has  agreed  with  that  other  State  upon  an 
arbitration  which  is  to  the  tracing  of  a  divisionary 
line  between  their  respective  territories. 

It  was  fully  proved  in  the  arbitral  proceeding  that 
from  the  primitive  Veragua  were  formed  three  dis 
tinct  provinces :  the  Province  of  Veragua  (the  only  one 
that  retained  that  name),  constituted  as  such  in  1560, 
with  its  governor  and  captain-general  and  having  for 
its  domain  the  territory  of  the  Dukedom  of  Veragua; 
the  Province  of  Costa  Rica  which  began  by  embracing 
the  whole  of  Royal  Veragua,  formed  by  virtue  of  the 
commission  granted  by  Philip  II  to  Cavallon,  in  1561, 
and  instituted  as  such  province  with  its  governor, 
captain-general,  in  1565,  and  definitively  organized  by 
means  of  the  Government  of  Artieda,  in  1573-1574, 
upon  the  segregation  of  the  territory  situated  to  the 
north  of  the  Desaguadero  or  San  Juan  river,  and  the 
Province  of  Teguzgalpa  which  was  created,  in  1576, 
out  of  the  segregated  territory  that  was  called  later 
the  Mosquito  Coast. 

It  has  been  also  demonstrated  that  the  Province  of 
Costa  Rica  and  that  of  Veragua  existed  as  distinct 
provinces,  with  their  respective  territories  and  with 
different  governors,  from  the  time  of  their  definitive 
constitution  until  the  termination  of  the  colonial  pe- 
riod; and,  furthermore,  that  each  depended  upon  a 
different  superior  government — the  Province  of  Costa 


178 

Rica  upon  the  Viceroyalty  of  Mexico  and  Captaincy 
General  and  Audiencia  of  Guatemala  and  the  Province 
of  Veragua  upon  the  Viceroyalties  of  Peru  and  New 
Granada  and  Audiencias  of  Panama  and  Santa  Fe. 

The  Recopilacion  de  Indias,  far  from  suppressing 
the  Province  of  Costa  Rica,  as  Colombia  pretends,  con- 
firmed its  existence  and  mentioned  it  expressly  as  a 
distinct  province  from  that  of  Veragua.  The  Province 
of  Veragua,  which  the  Recopilacion  declares  is  em- 
braced in  the  Government  of  Tierra  Finne,  was  the 
one  that  sprang  from  the  dukedom;  whereas,  that  of 
Costa  Rica  continued  dependent  upon  the  Audiencia  of 
Guatemala,  as  it  is  also  expressly  provided  in  that 
code. 

Colombia  contradicts  her  own  argument  of  the  legal 
non-existence  of  the  Province  of  Costa  Rica,  when  she 
alleges  that  the  Royal  order  of  San  Lorenzo,  of  No- 
vember 20,  1803,  segregated  from  the  Superior  Gov- 
ernment of  Guatemala  the  Atlantic  part  of  Costa  Rica 
as  embraced  in  the  Mosquito  Coast,  in  order  to  add  it 
to  the  Viceroyalty  of  Santa  Fe;  for  this  is  equivalent 
to  recognizing  that  Costa  Rica  legally  existed  without 
belonging  to  the  Viceroyalty  of  Santa  Fe,  and  that  only 
that  portion  passed  into  dependency  upon  it,  the  rest 
remaining  under  the  jurisdiction  of  Guatemala. 

It  has  been  proved  that  the  Royal  order  of  1803  did 
not  refer  to  Costa  Rica,  since  the  latter  did  not  form 
a  part  of  the  Mosquito  Coast;  that  the  order  had  only 
a  military  and  transitory  character;  that  it  could  not 
change  the  laws  of  territorial  division,  and  that  it 
was  inefficacious,  contradicted  and  abrogated. 

The  Spanish  Province  of  Costa  Rica,  emancipated 
in  1821,  brought  to  the  Federal  Republic  of  Central 
America  (which  it  formed  with  the  other  provinces  of 


179 

the  Old  Kingdom  of  Guatemala)  the  very  same  terri- 
tory that  it  had,  in  fact  and  in  law,  as  such  Spanish 
province,  and  with  that  same  territory  belonging  to  tha 
State  of  Costa  Rica,  the  Republic  of  Central  America 
was  recognized  by  the  Colombian  Government  in  the 
Treaty  of  1825. 

4.    Question  of  Delimitation. 

(a)  Costa  Rica's  Evidence. 

The  Republic  of  Costa  Rica,  as  appears  in  Art.  2 
of  the  Convention  of  January  20,  1886,  has  claimed  in 
the  arbitration  as  the  line  dividing  her  territory  from 
that  of  Colombia:  on  the  Atlantic  side,  the  line  indi- 
cated by  tlie  Island  of  Escudo  de  Veragua  and  the 
Chiriqui  (Calobebora)  river,  inclusive;  and  on  the 
Pacific  side,  the  Chiriqui  Viejo  river,  inclusive,  to 
the  east  of  Punta  Burica.  That  line  is  the 
one  fixed  by  the  fundamental  law  of  the  State  of  Costa 
Rica  of  January  21,  1825,  and  with  which  the  Republic 
of  Central  America  was  recognized  by  Colombia  in 
the  Treaty  of  May  15  of  the  same  year.  And  that 
same  line  is  the  one  which  separated  the  Province  of 
Costa  Rica  from  that  of  Veragua  under  the  colonial 
regime,  being  also  the  divisionary  line  of  the  viceroyal- 
ties  and  the  bordering  audiencias. 

The  legality  of  this  delimitation  is  based  upon  Law 
1,  title  1,  book  V,  of  the  Recopila^ion  de  Indias  (Doc. 
No.  131) ;  in  that  law,  enacted  by  Carlos  II  when  that 
code  was  published,  it  was  ordered  that  the  viceroys, 
audiencias,  governors  and  alcaldes  may  ores  should 
keep  and  respect  the  boundaries  of  their  jurisdictions 
''as  they  may  be  fixed  by  the  Laws  of  this  book,  the 
Titles  of  their  offices,  the  Provisions  of  the  Superior 


180 

Government  of  the  Province,  or  by  use  and  custom 
legitimately  introduced. ' ' 

The  Republic  of  Costa  Rica  has  fully  proved  in  the 
litigation  that  from  the  demarcation  of  the  province 
of  that  name,  made  in  Artieda's  capitulacion  of  1573, 
and  his  title  of  governor,  granted  in  1574,  the  boun- 
daries of  that  province  were  the  line  of  the  Island  of 
the  Escudo  de  Veragua  and  that  of  the  Chiriqui 
(Calobebora)  river,  on  the  Atlantic  side,  and  the 
Chiriqui  Viejo  river  (or  rather,  the  Valleys  of  the 
Chiriqui,  inclusive),  on  the  Pacific  side,  and  therefore 
existed  at  the  time  of  the  publication  of  the  Recopila- 
cion  de  Indias,  as  shown  by  the  acts  of  sovereignty 
exercised  by  the  monarchs,  the  titles  of  the  oflBces  of 
the  governors,  the  provisions  of  the  superior  govern- 
ment of  the  provinces,  and  the  rights  based  on  custom. 

The  laws  of  the  Recopilacion  did  not  establish  any 
different  boundaries;  and  in  respecting  all  the  Royal 
cedulas  which  were  not  in  contradiction  therewith,  the 
Royal  cedulas  demarcatory  of  boundaries  remained  in 
force  without  denying  efficacy  to  the  eapitulaciones, 
the  validity  of  which  was  recognized  in  so  far  as  they 
were  not  in  contradiction  with  the  laws  of  the  Recopi- 
lacion, those  eapitulaciones  being  considered,  taken  to- 
gether, as  a  system  governing  discovery,  settlement, 
pacification  and  government  of  the  territories  of  the 
Indies. 

As  a  result  of  the  creation  of  the  Viceroyalty  of  New 
Granada,  and  the  incorporation  of  the  Audiencia  of 
Panama  in  the  Audiencia  of  Santa  Fe,  the  proof  of 
the  boundaries  of  the  Province  of  Costa  Rica  is 
strengthened  with  the  descriptions  of  the  boundaries 
of  that  viceroyalty  and  of  the  audiencia  that  reached 


181 

as  far  as  that  province,  bannonizing  with  all  the  ante- 
cedents from  the  demarcation  assigned  to  Artieda. 

This  is  shown  from  the  "Description  of  the  King 
dom  of  Tierra  Pirme,"  by  the  Comandante  general  of 
Panama,  Don  Antonio  Guill,  in  17G0;  from  the  "De- 
scription of  the  Viceroyalty  of  Santa  Fe,"  by  its  Vice- 
roy, the  Marquis  de  la  Vega  de  Armijo,  in  1772 ;  from 
the  "Report"  by  the  Governor  of  Veragua,  Don  Felix 
Francisco  Bejarano,  in  1775;  from  the  "Descriptions 
of  tlie  Viceroyalty  of  Santa  Fe,  of  Tierra  Firme  and 
of  Veragua,"  in  the  most  interesting  work  relating 
to  southern  America,  by  the  missionary,  Sobreviela, 
in  1796,  and  by  the  "Official  Communication"  of  the 
Governor  of  the  Islands  of  San  Andres,  Don  Tomas 
O'Neille,  inl802. 

The  boundaries  of  the  Province  of  Costa  Rica  con- 
tinued unchanged  in  the  last  years  of  the  Spanish  sov 
ereignty,  for  it  has  been  shown  by  official  documents 
that  that  province  continued  to  embrace  the  territory 
from  sea  to  sea,  including  the  Matina  Coast  and  the 
region  of  Talamanca,  and  that  the  Royal  order  of  1803 
produced  no  change  whatever  in  the  traditional  de- 
marcation. 

Colombia  recognized  Costa  Rica  to  be  in  possession 
of  boundaries,  the  extreme  points  of  which  were  the 
Island  of  the  Escudo  de  Veragua  and  the  mouth  of 
the  Chiriqui  Viejo  river,  by  the  uti  possidetis  of  the 
Treaty  of  1825,  and  by  the  fact  that,  at  the  moment  of 
the  emancipation,  she  immediately  set  up  against  this 
uti  possidetis  de  facto  the  uti  possidetis  de  jure,  as 
though  Costa  Rica  possessed  SMch  limits  without  au- 
thority of  law.  It  has  been  demonstrated  that  Costa 
Rica  has  in  her  favor,  not  only  the  uti  possidetis  de 


182 

facto,  but  the  uti  possidetis  de  jure,  based  upon  the 
Recopilacion  de  Indias  and  the  provisions  which  the 
latter  respected  or  confirmed,  or  which  were  issued  in 
accordance  therewith. 

{b)  Colombia's  Evidence. 

The  abundant  proof  submiited  by  the  Republic  of 
Costa  Rica  as  to  lier  boundaries  presents  a  strong  con- 
trast to  the  almost  complete  lack  of  evidence  on  the 
part  of  Colombia;  because,  as  we  have  said,  she  does 
not  occupy  herself  with  the  question  properly  of  boun- 
daries, but  with  the  territoriality. 

As  appears  in  Art.  2  of  the  Convention  of  1886,  the 
Republic  of  Colombia  has  claimed  in  the  arbitration, 
as  her  territorial  limit :  on  the  Atlantic  side,  as  far  as 
Cape  Gracias  a  Dios,  inclusive ;  and  on  the  Pacific  side, 
to  the  mouth  of  the  Golfito  river  in  Dulce  Gulf. 

To  claim  from  Dulce  Gulf  in  the  Pacific  to  Cape 
Gracias  a  Dios  in  the  Atlantic,  is  not  only  equivalent 
to  asking  for  all  the  territory  iucludt^d  between  the  said 
Gulf,  the  Chiriqui  Viejo  river,  the  Escudo  de  Veragua 
and  the  Culebras  river,  but  also  for  the  whole  Atlantic 
coast  of  Costa  Rica  and  Nicaragua,  and  Colombia  ex- 
posed herself,  besides,  when  attempting  to  unite  the 
two  extreme  points  of  her  claim,  to  invade  Costa  Rican 
territories  not  included  in  the  boundary  dispute,  as  she 
effectively  did  in  the  demand  presented  to  the  PVench 
Arbitrator.  It  is  true  that  Colombia  has  left  out  the 
rights  of  third  parties,  and  therefore  of  Nicaragua, 
stopping  at  the  Desaguadero,  or  San  Juan  river,  the 
boundary  between  Nicaragua  and  Costa  Rica.  But  in 
her  eagerness  to  justify  her  right  as  far  as  Cape  Gra- 
cias a  Dios  or  the  Desaguadero,  she  has  failed  to  prove 


183 

her  boundaries  with  Costa  Rica,  by  creating  herself 
mistress  of  the  whole  of  primitive  Veragua. 

When  Colombia  invokes  the  Royal  order  of  San 
Lorenzo  of  1803,  to  maintain  her  point  that  the  At- 
lantic portion  of  Costa  Rica  had  been  incorporated 
to  the  Viceroyalty  of  Santa  Fe — whereby  she  recog- 
nized that  the  portion  on  the  Pacific  side  continued 
separated  from  that  viceroyalty — it  would  seem  that 
she  was  under  obligation  to  fix  the  divisionary  line 
between  one  portion  and  the  other,  but  she  never  has 
done  so,  forgetting  doubtless,  that  this  Royal  order  did 
not  establish  such  divisionary  line,  because  not  demar 
catory  of  boundaries. 

So  that  Colombia  has  been  left  in  this  arbitral  pro- 
ceeding in  the  same  situation  as  would  be  the  owner  of 
a  piece  of  property  who,  in  litigating  with  an  adjoin- 
ing owner,  refused  to  prove  the  divisionary  line  be- 
tween two  properties,  on  the  ground  that  both  belonged 
to  him;  and  the  Arbitrator  will  be  found  in  the  situa- 
tion in  which  the  judge  would  be  left,  who,  holding  the 
ownerships  to  be  distinct,  and  unable  to  recast  them 
into  a  single  one,  had  to  mark  out  the  properties 
in  face  of  the  fact  that  one  of  the  holders  had  proved 
his  divisionary  line,  whilst  the  other  had  not. 

A  judge  placed  in  such  a  position  might  perhaps  be 
perplexed  to  decide  a  question  of  boundaries,  properly 
speaking,  through  fear  of  being  unduly  inclined  on  the 
side  of  the  one  who  presented  the  proof.  But  that  fear 
cannot  exist  in  the  present  case,  for  two  reasons:  (1) 
because  Colombia  has  discussed  the  evidence  of  Costa 
Rica  under  conditions  even  more  advantageous,  since 
she  presented  a  third  brief  and  a  summary  of  conclu- 
sions in  the  arbitral  proceedings,  of  which  brief  and 
summary  Costa  Rica  had  no  notice  except  by  the  Award 


184 

and  was  therefore  imable  to  refute  thera;  and  (2) 
because  Colombia,  althou.£:h  she  may  not  have  made 
direct  proof  of  her  divisionary  line,  offered  indirectW 
a  most  valuable  proof  in  the  very  title  which  she  al- 
leges as  the  basis  of  her  rights  and  which  may  be  used 
to  take  bearings  from  in  order  to  decide  with  more 
assurance:  we  refer  to  the  proof  of  the  limits  of  the 
Dukedom  of  Veragua. 

(c)   Special  Consideration  of  the  Boundaries  of  the 
Dukedom  of  Veragua. 

Those  boundaries  are  established  by  the  Royal 
cedula  of  Carlos  V  of  March  2,  1537,  which  is  cited 
by  Law  9,  title  1,  book  V,  of  the  Recopilacion  de  Indias 
as  a  precedent  for  its  text,  in  order  to  indicate,  in  our 
opinion,  the  origin  of  the  Province  of  Veragua. 

Colombia  maintains  that  when  that  law  declared 
that  the  whole  Province  of  Veragua  should  belong  to 
tlie  ( !  ntruiiient  of  Tierra  Firme,  it  referred  to  the 
primitive  Veragua,  in  which  Costa  Rica  was  embraced. 
Costa  Rica  affinns  that  the  law  referred  to  ttio  Prov- 
ince of  V^eragua  as  it  was  constituted  at  the  time  of 
the  publication  of  the  Recopilacion  de  Indias,  in  1680, 
and  maintains  that  that  province  is  the  Dukedom  of 
Veragua.  And  having  proved  that  Panama  cannot 
claim  any  other  province  of  Veragua  than  the  one 
arising  out  of  the  dukedom,  she  must  resign  herself  to 
defending,  as  boundaries  of  this  province,  those  which 
Colombia  has  recognized  as  limits  of  the  dukedom  by 
invoking  the  Royal  cedula  of  1537. 

According  to  that  Royal  cedula,  the  divisionary  line 
between  Panama  and  Costa  Rica  would  be  the  straight 
line  from  the  west  side  of  the  square  of  25  leagues. 


185 

opposed  to  that  which  might  be  traced  upon  the  mer 
idian  of  the   Belen   river   (inclusive),   embraced   be- 
tween the  parallels  of  the  extremes  and  at  a  distance 
of  25  leagues. 

The  meridian  corresponding  to  the  mouth  of  the 
Belen  river,  being  that  of  80°  51'  west  of  Greenwich, 
and  the  mouth  being  on  the  parallel  of  8°  54',  that 
divisionary  line,  at  the  distance  of  25  leagues,  would  b<^ 
indicated  by  the  meridian  of  82°  6',  starting  from  the 
same  parallel  in  the  southern  direction,  and  counting 
by  20  leagues  to  the  degree.  If  the  league  is  counted 
at  the  rate  of  261/2  to  the  degree,  that  divisionary  line 
would  recede  toward  Panama,  the  leagues  being 
smaller.  If  the  league  is  counted  at  the  rate  of  171/2 
to  the  degree,  the  divisionary  line  would  advance  upon 
Costa  Rica,  the  leagues  being  longer,  in  which  case 
(and  the  most  favorable  one  for  Panama)  the  dukedom 
would  not  extend  beyond  the  meridian  of  82°  15'  42" 
west  of  Greenwich,  starting  from  the  same  parallel  of 
8' 54".^ 

Costa  Rica,  in  designating  the  position  of  the  mouth 
of  the  Belen  river  has  made  use  of  the  most  recent  and 
exact  maps  of  the  English  Admiralty  Office,  officially 
adopted  by  the  Government  of  Panama,  as  may  be  seen 
even  in  the  "Map  of  the  Republic  of  Panama,  pre- 
pared by  Don  Ramon  M.  Valdes  and  Don  Andres  Vil- 
larreal  for  the  text  of  the  Geography  adopted  by  the 
Government  of  Panama,"  and  published  after  the 

'This  point  is  resolved  by  an  unquestionable  document  furnished  by 
Panama  itself.  We  refer  to  the  "Mapa  de  la  Republica  de  Panama" 
published  in  1910  by  Don  Ramon  M.  Valdes.  On  this  map  are  very 
clearly  traced  the  limits  of  the  ancient  Dukedom  of  Veragua  and  the 
divisional  line  with  Costa  Rica  is  indicated  by  the  meridian  81°  58'  03" 
west  of  Greenwich. 


186 

Award  of  M.  Loubot,  and  in  which  that  point  is  fixed  at 
80^  50'  40"  from  Greenwich. 

Against  the  rational  geographic  proof  of  Costa  Rica 
on  this  point,  Colombia  alleged  that  this  should  not  be 
the  position  of  the  Belen  river  because  a  settlement  of 
that  name  appears  much  further  to  the  west  in  a  map 
drawn  by  Diego  Ribero  in  1529;  but  even  this  argu- 
ment becomes  futile  if  the  map  of  Diego  Ribero,  cited 
by  Colombia  is  examined  without  prejudice  and  as  it 
was  found  in  the  library  of  the  Grand  Duke  of  Weimar. 
Ribera  did  not  trace  the  Belen  river,  and  in  his  map 
this  name  is  applied  to  a  place  or  vast  area  of  water, 
which  may  well  be  estimated  at  25  leagues  to  the  east 
of  Zorobaro,  if  there  is  taken  into  account  the  de- 
fective and  diminutive  scale  of  the  Carta  Universal 
(Universal  Chart). ^ 

And  even  though  no  map  were  in  existence,  that 
distance  of  25  leagues  from  the  Bay  of  Zorobaro,. 
which  results  from  the  account  of  the  voyage  of  Co- 
lumbus, and  which  the  Council  of  the  Indies  must 
have  taken  into  account  in  laying  out  the  dukedom, 
would  always  be  a  very  important  factor. 

It  is  not  our  purpose  to  enter  into  a  technical  dis- 
cussion as  to  whether  the  Spanish  leagues  of  the  XVIth 
century  were  of  26y2  to  the  degree,  as  Jorge  Juan 
believed,  or  liy^,  as  was  maintained  by  the  illustrious 
General  of  the  Armada,  Don  Pelayo  Alcala  Galiano,  in 
his  "Considerations  Concerning  Santa  Cruz  de  Mar 
Pequeiia,"  of  1879,  based  among  other  data,  on  the 
fact  that  the  league  of  Burgos  was  the  one  adopted  in 
the  Conferences  of  Badajoz  concerning  the  demarca- 


'The  learned  commentary  of  J.  G.  Kohl  upon  the  Carta  Universal 
of  Diego  Ribero  shows  the  error  of  Colombia.  Vide :  "The  Two  Old- 
est Maps  of  America,  etc.,"  by  J.  G.  Kohl,  Weimar,  1860. 


187 

tion  of  the  Spanish  and  Portus^uese  dominions  in  lf324, 
as  pointed  out  by  Humboldt.  It  is  enough  for  us  to 
repeat  that  even  accepting  the  league  of  171/2  to  the 
degree,  the  divisionary  line  of  the  dukedom  would  not 
penetrate  into  Costa  Rica  further  than  82^  15'  42". 

Comparing  now  the  divisionary  line  asked  for  by 
Costa  Rica  in  the  arbitration  with  that  of  the  dukedom, 
the  result  is :  that  on  the  north  side  it  goes  beyond  that 
of  the  dukedom,  and  reaches  that  of  the  Escudo  de 
Veragua  and  of  the  Chiriqui  or  Calobebora  river 
(meridian  81°  34'  of  longitude  west  of  Greenwich) ; 
whilst  on  the  south  side,  it  does  not  reach  the  line  of 
the  dukedom,  but  remains  at  the  mouth  of  the  Chiriqui 
Viejo  (meridian  82°  44').  The  difference  between  the 
advance  and  the  backward  movement  is  divided  equally 
by  the  meridian  of  82°  9',  which  only  differs  by  three 
minutes  to  the  west  from  that  corresponding  to  the 
line  of  the  dukedom,  counting  the  leagues  at  the  rate 
of  20  to  the  degree.  That  is  to  say,  that  the  advance 
is  compensated  by  the  retrogression. 

Whatever  may  be  the  divisionary  meridian  of  the 
dukedom,  Costa  Rica  enters  into  the  Bay  of  Almirante 
or  Lagoon  of  Chiriqui:  on  its  western  side,  if  the 
leagues  are  counted  at  the  rate  of  17i/>  to  the  degree ; 
at  its  centre,  if  at  the  rate  of  20;  and  on  its  eastern 
side,  if  at  the  rate  of  261/0.  In  any  event,  there  would 
always  belong  to  Costa  Rica  all  of  that  bay,  with  its 
coast  and  the  Valiente  Peninsula,  under  the  mathe- 
matical demarcation  of  the  dukedom,  by  being  on  the 
north  of  the  square  which  encloses  the  parallel  of 
8°  54'  common  to  all  the  meridians  determined  by 
different  lengths  of  leagues. 

Colombia,  by  presenting  as  a  justifying  title  for  her 
rights  the  Royal  cedula  of  Carlos  V  of  1537,  which 


188 

establishes  the  demarcation  of  the  dukedom,  proves  her 
conformity  with  the  boundaries  of  the  latter,  which 
are  mathematical  and  refer  concretely  to  geographical 
points  and  distances,  and  therefore  offer  the  assurance 
of  not  going  astray  in  the  cognizance  of  the  localities 
and  the  estimation  of  the  facts  that  are  connected 
therewith. 

Costa  Rica  has  demonstrated  that  this  Dukedom  of 
Veragua  was  converted  into  the  Province  of  Veragua, 
and  even  when  for  this  reason  it  would  seem  that  she 
ought  to  have  claimed  as  the  divisionary  line  that  of 
the  dukedom,  she  did  not  do  so,  but  confined  herself 
strictly  to  the  legal  and  historical  reality  that,  from 
the  time  of  Artieda  (1573)  to  the  independence  (1821), 
was  the  line  she  has  asked  for,  that  reality  having 
been  the  one  recognized  by  the  Recopilacion  de  Indias 
and  the  principle  of  the  colonial  uti  possidetis. 

By  accepting  the  straight  line  of  the  dukedom,  Costa 
Kica  would  lose,  on  the  north,  the  territory  in  which 
Artieda  founded  the  city  bearing  his  name  and  almost 
the  whole  of  the  Valleys  of  Guaymi,  of  which  he  took 
possession,  as  governor  of  the  province,  with  perfect 
right  recognized  by  the  King.  In  exchange,  Costa  Rica 
would  gain,  on  the  south,  the  territory  embraced  be- 
tween the  Chiriqui  Viejo  river  and  the  line  of  the 
dukedom,  enlarging  herself  by  the  Valleys  of  Chiriqui, 
to  which  she  also  had  a  right  by  virtue  of  the  Royal 
oedula  of  1573. 

Costa  Rica  could  aspire  to  gain  without  losing,  by 
claiming  all  the  Valleys  of  Chiriqui  under  that  Royal 
oedula,  but  she  has  not  gone  beyond  the  Chiriqui  Viejo 
river,  to  follow  the  historic  reality,  for  .-.lie  con- 
siders that  the  Governors  of  Costa  Rica  abandoned  the 


18'^ 

valleys  on  the  other  side  of  that  river  to  the  intrusions 
of  the  Province  of  Veragua. 

5.    Final  Deductions. 

The  following  deductions  are  drawn  from  ail  that 
has  been  stated,  concerning  the  general  questions  in 
which  the  case  is  synthetized : 

1.  That  both  of  the  Parties  litigant  are  agreed  in 
accepting  as  legal  bases  for  the  determination  of  this 
case  the  Recopilacion  de  Indias  and  the  principle  of  the 
colonial  uti  possidetis. 

2.  That  Colombia  has  swallowed  up  the  question 
of  boundaries  in  that  of  territoriality,  denying  even 
the  legal  existence  of  the  Province  of  Costa  Rica,  which 
was  definitively  constituted  in  1573  and  with  the  same 
territory  that  it  kept  when  it  was  recognized  by  the 
Recopilacion  (1680)  and  when  it  was  emancipated  from 
Spain  (1821). 

3.  That  Costa  Rica  has  fully  proved  that  the  bounda- 
ries which  separated  her  from  the  old  Province  of 
Veragua,  when  it  was  emancipated,  were  the  same 
which  she  possessed  when  her  domain  was  marked  out 
by  the  Royal  cedula  of  1573  and  which  were  confirmed 
by  the  Recopilacion. 

4.  That  Colombia,  by  claiming  an  enormous  part  of 
the  territory  of  Costa  Rica,  has  not  undertaken  to 
prove  the  boundaries  of  the  Province  of  Veragua  with 
that  of  Costa  Rica,  but  by  invoking  as  the  title  of  her 
right  the  Royal  cedula  of  March  2,  1537,  which  estab- 
lished the  boundaries  of  the  Dukedom  of  Veragua,  she 
recognizes  the  boundaries  of  that  dukedom,  which  ia 
the  Province  of  Veragua. 


190 

5.  That  the  whole  ease  between  Colombia,  or  Pan- 
ama, and  Costa  Rica,  reduces  itself  to  the  question 
whether  there  is  to  be  fixed  as  the  divisionary  line  that 
of  the  dukedom,  as  the  said  Royal  cedula  mathemati- 
cally determines  it,  or  the  line  claimed  by  Costa 
Rica,  which  is  the  one  that  she  has  held  in  fact  and  law 
from  her  administrative  constitution  as  a  Spanish 
province  until  her  political  organization  as  a  sovereign 
State. 


The  undersigned  counsel  have  the  honor  to  submit 
the  foregoing  opinion  in  response  to  the  questions 
proposed  to  them  by  the  Government  of  the  Republic 
of  Costa  Rica. 

Segismundo  Moret  y  Pbendebgast. 
Vicente  Santamabia  de  Pabedes. 


Madrid,  August  31,  1911. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

i|  II  iiii  I  III  1 1  III  nil  r" 
AA    000  639  493    6 


